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Circumcision Consent Forms May Be Biased

MANHATTAN (CN) - New York City's regulation of ritual circumcision - the tradition in Hasidic Jewish communities of sucking a baby's circumcision wound - may amount to discrimination, the 2nd Circuit ruled.

Metzitzah b'peh, abbreviated in the Friday decision as MBP, is the term for the ritual act of performing direct oral suction on the wound created in removing the foreskin of a male child's penis during a Jewish bris.

Because of the risk infants face in contracting the herpes simplex virus from this ritual, New York City amended its health code in 2012 so that mohelim must obtain written parental consent before performing MBP. Such consent forms warn parents that the NYC health department "advises parents that direct oral suction should not be performed."

Though Orthodox Jewish groups complained that the regulation compels speech in violation of their right to free exercise of religion under the federal and state constitutions, U.S. District Judge Naomi Buchwald denied them an injunction last year.

Finding that the regulation is neutral and applicable to everyone, Buchwald deemed it subject only to rational-basis review. Citing the regulation's rational aim of preventing the transmission of herpes to newborn babies, Buchwald said the plaintiffs had little chance of success on the merits.

In reversing Friday, however, a three-judge panel of the 2nd Circuit said Buchwald had applied the wrong standard because the regulation obviously targets a religious practice.

"We hold that the challenged ordinance is neither neutral nor generally applicable and thus is subject to strict scrutiny under the Free Exercise Clause," Judge Debra Ann Livingston wrote for the court.

The 34-page opinion goes on to explain that "the regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens."

"And at least at this preliminary stage, the regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals," Livington continued.

On remand, Buchwald must consider whether the regulation passes muster under a "strict scrutiny" standard.

Since the court denied a renewed request by the plaintiffs to temporarily stay enforcement of the regulation, the rule remains in effect.

Livingston acknowledged that city health authorities may have legitimate reasons for regulating the Jewish circumcision ritual. New York City Law Department attorney Mordecai Newman presented evidence indicating that 11 newborns had contracted herpes as a result of direct oral suction by mohelim since 2000. For one infant, the virus proved fatal.

Livingston also asserted, however, that "it is abundantly clear" that the regulation targets a religious practice. While infants are especially vulnerable to the virus, the regulation addresses a source of only a small percent of cases among infants "while leaving secular conduct associated with a larger percentage of such infection unaddressed," she wrote.

As the Court of Appeals pointed out in a footnote, 85 percent of the cases of neonatal herpes involve transmission from mother to infant during delivery, and the regulation does nothing to address that problem.

Livingston noted that the Court of Appeals, at this point, has no opinion about the merits of the motion to enjoin the regulation, or whether the Health Code section can withstand closer scrutiny.

"Acknowledging the weighty interests at stake in this litigation (the plaintiffs' in the free exercise of their faith and the department's in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this standard, believing that careful adjudication will benefit in the first instance from the district court's comprehensive analysis," Livingston wrote (parentheses in original).

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