I sit on the Board of Governors of the American Association of Jewish Lawyers and Jurists, went to high school and post-high school yeshivas, learned in kollel in Israel for two years after I was married, and send my children to yeshiva schools. So I am very sympathetic to religious liberties concerns.
But the MBP case is one in which the regulation at issue is not only entirely reasonable but in fact necessary to protect the religious (as well as constitutional) rights of parents to make informed choices about their child’s religious upbringing and medical care, and to protect the public health.
My clients filed a submission to the federal district court, which the lower court relied on in an extremely thorough 100-plus page opinion that examined each medical and legal issue in detail in denying the plaintiffs’ request for an injunction blocking the regulation. The court held that any right the mohel has with respect to the religious ritual is “inherently circumscribed by parents’ right to decide whether [it] is performed on their child.”
The plaintiffs have appealed that decision, and we filed a friend of the court brief to the federal court of appeals in support of the lower court’s conclusions.
In addition to the parental rights issues, the lower court found that the “letters and amicus submission from major national medical organizations . . . give us confidence that there is ‘overwhelming scientific evidence demonstrating the increased likelihood that newborns subject to direct oral suction will acquire HSV.’ ”
Simply put, and notwithstanding plaintiffs’ arguments to the contrary, the evidence is incontrovertible that infectious diseases have been transmitted through direct oral suction on numerous occasions, and that MBP increases the risk that an infant will acquire herpes simplex virus.
The evidence includes the investigations of the eleven cases of post-MBP herpes simplex virus in New York City between 2004 and 2011 noted above, two new cases of HSV following direct oral suction in New York City in the past year, and numerous peer-reviewed studies of cases outside of New York City.
For example, a study in the peer-reviewed journal Pediatrics reporting on eight such cases concluded that the connection between oral contact and HSV is strongly suggested by the “exclusive genital distribution of the lesions, timing of their appearance . . ., and absence of clinical signs and symptoms consistent with HSV infections among family members” as well as the fact that of the ritual circumcisers who agreed to be tested, all tested seropositive for disease, meaning the mohelim had been infected with HSV. Five of eight infected babies in the study experienced severe complications from HSV, including seizures and brain damage.
Two hundred years of historical data further support the straightforward proposition that direct oral suction increases the risk of transmission of HSV and other infectious diseases. Much of the historical literature is collected in a lengthy article by Dr. Shlomo Sprecher, a physician with an interest in medical history and halacha that appeared in the journal Hakirah. These include a fatal syphilis epidemic among infants in Krakow, Poland, in the early 1800s and a “spate of fatalities among the newly circumcised infants” observed by the physician in chief of the Jewish Hospital in Vienna in 1837. The doctor consulted the city’s chief rabbi, Rabbi Elazar Horowitz, and “requested authorization to substitute manually applied pressure [with gauze] . . . to accomplish the drawing out of blood instead of utilizing MBP.” This request likely arose because the Talmud requires only “metzitzah” (drawing of blood) and not “metzitzah b’peh” (drawing of blood by mouth).
After Rabbi Horowitz received approval from the Chasam Sofer (Rabbi Moses Sofer), one of the leading authorities of the day, this change was instituted in Vienna, and there were no further fatalities. The historical record includes many other examples.
Moreover, the reported cases, while independently significant, are very likely only a subset of the far larger population of infants who acquire HSV and other infectious diseases through direct oral suction. Tragically, only a few jurisdictions in the world mandate reporting of neonatal HSV.
Indeed, I was told by a pediatrician in New Jersey of a case of post-MBP herpes she was involved with that resulted in the death of the infant, but because New Jersey is not a mandatory reporting jurisdiction, this case and likely many others do not appear in the literature. Neonatal HSV also sometimes presents asymptomatically (without visible symptoms), and its symptoms are often misdiagnosed as sepsis.Akiva Shapiro
About the Author: Akiva Shapiro is a litigator at Gibson, Dunn & Crutcher in New York, focusing on constitutional and appellate law.
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