New York, NY – Judge Won’t Block City’s Metzitzah B’Peh Law

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    FILE - An ultra-Orthodox Jewish father (C) holds his son before his circumcision September 24, 2012.  ReutersNew York, NY – A Manhattan federal judge refused to block a New York City regulation requiring people who perform circumcisions and use their mouths to draw away blood from the wound on a baby’s penis to first obtain written consent from the parents.

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    U.S. District Judge Naomi Reice Buchwald on Thursday refused to issue a preliminary injunction against the change to the city’s health code, which some members of the city’s Orthodox Jewish communities called an unwarranted government intrusion on religious freedom.

    In September, the New York City Board of Health voted to require mohels, who perform circumcisions, to obtain advance consent that tells parents about the risk of a potentially fatal herpes infection linked to the ritual of metzitzah b’peh, or MBP, involving direct oral suction of the penis.

    Enforcement of the regulation was put on hold until Buchwald could rule on the request by the Central Rabbinical Congress of the USA and Canada, the International Bris Association and some rabbis for a preliminary injunction.

    In court papers filed in October, they said the regulation improperly singled out an exclusively religious ritual, and violated the free speech and free exercise protections within the First Amendment of the U.S. Constitution.

    But in a 93-page decision, Buchwald refused to halt enforcement of the regulation, and said the plaintiffs’ claims were likely to be found without merit.

    “There is ample medical evidence that direct oral suction places infants at a serious risk of herpes infection, as well as evidence that parents are sometimes unaware in advance of a circumcision that MBP will occur, and the regulation plainly addresses these legitimate societal concerns,” Buchwald wrote.

    “As enacted, the regulation does no more than ensure that parents can make an informed decision” whether to consent, she added.

    Shay Dvoretzky, a partner at Jones Day representing the plaintiffs, was not immediately available for comment.

    The city welcomed the decision. “Informing parents about the grave risks associated with this procedure is critical to safeguarding infants’ health,” Michelle Goldberg-Cahn, a senior lawyer for the city, said in a statement.

    New York City said it plans to begin enforcing the consent requirement even if litigation continues.

    City health officials on Thursday said at least 11 infant boys have in the last several years contracted a potentially fatal form of herpes following circumcision with direct oral suction, and that two of the boys died.

    Opponents of the regulation have said the health department had not proven a higher incidence of neonatal herpes among boys who had received direct oral suction.

    The case is Central Rabbinical Congress of the USA and Canada et al v. New York City Department of Health & Mental Hygiene et al, U.S. District Court, Southern District of New York, No. 12-07590.


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    85 Comments
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    Facts1
    Facts1
    11 years ago

    So did the enlightened Greek, Hellenist & Romans etc, we all know their place in history. This too will pass, together with the enlightened Jews of today, we the frum, tradition grasping primitive Jews will stay forever.

    History repeats itself.

    As Mark Twain said, Jews walk on the graves of their oppressors.

    ZSNYC
    ZSNYC
    11 years ago

    The appellate court will bezras hashem. I’ve been told that they knew before hand that she won’t issue this injunction. So that’s why they filed immediately, with high hopes.

    sasregener
    sasregener
    11 years ago

    So will gestapo leader

    Herr Bloomberg now send in his SS stormtroopers to every bris to make sure that everything is kosher. Tell me how this is different then the greeks or romans yimach shemom

    lamdan
    lamdan
    11 years ago

    What’s the fuss about maybe we can make a compromise every mohel should have to take a test if he’s positive then he can’t be a mohel

    DRSLZ
    DRSLZ
    11 years ago

    When will Bloomberg require priests to obtain written consent before giving wine to minors and others who may become alcoholic (which plagues so much of our society, particularly Catholics)? When will he require written consent before circumcision is done on 13 year old Moslem boys?
    The health risks here are miniscule. The risks to religious freedom are not.
    Selective regulation of religious practice should be of concern to all of us.

    11 years ago

    My nephew died from this. Please think before you comment. Thank you.

    11 years ago

    The judge weighs the evidence presented and believes an informed consent is reasonable. She didn’t ban MBP. She didn’t ban circumcision. She only ruled that an informed consent is a reasonable regulation. Yet some of you are already screaming “Nazi, SS or Stormtrooper.” Grow up.

    PaulinSaudi
    PaulinSaudi
    11 years ago

    Seems like a minimal interference with religious matters to protect the public’s interest.

    chosid
    chosid
    11 years ago

    Let’s see them try to enforce this.

    savtat
    savtat
    11 years ago

    I am a little confused about the comparison to the Greeks – NYC has not banned the Bris Milah – it is just trying to regulate it for the health of the infant. And, this is also a concern for the parents who want their baby to be healthy. Would anyone consider a mohel who has herpes? Please, let’s be sane here.

    Secular
    Secular
    11 years ago

    Here we go, the throwbacks against the Kofrim

    11 years ago

    To #9 . I do post my comment and criticize sometimes when I have something smart to write, but you are off the deep end, so I will not comment to a piece of garbage like you. I am deeply sorry. Next time.

    11 years ago

    Sorry to #8

    DemsBeBabies
    DemsBeBabies
    11 years ago

    IYH my next son’s bris will have metzitzah bpeh, 17 oz cups with only soda served, all dishes will have a ton of salt, relatives with armed concealed carry permits, only parking for cars (no bike lockup area), and maybe even a smoker. Maybe i can get my wife to let me name him John Galt!

    nymom
    nymom
    11 years ago

    To all those who are commenting negatively to number 5, I think you may have misunderstand what the comment meant. From what I understand, he said:

    The health risks here are miniscule. = The health risks of metzizah b’peh are miniscule
    The risks to religious freedom are not.= The risk of starting to put any limits on metzitzah b’peh are not miniscule; it is a big risk to religious freedom to start tampering with metzitzah b’peh

    I think you commenters and commenter #5 are in agreement

    11 years ago

    Thank G-d the govt is here to protect our children even when we won’t!

    Truth
    Truth
    11 years ago

    We should worry about how we can protect the kids, instead of filling out some form.
    Are we going to test Mohelim or we going to possibly continue putting babies in Sakana? The reaction against the city reg. is just a knee-jerk reaction. It’s time to grow up and do what the Torah wants from us like protecting little kids!

    Raphael_Kaufman
    Raphael_Kaufman
    11 years ago

    Here’s a question. The Gemarah clearly indicates that metzitza is not an ikkar part of the mitzvah of milah but is a refuah. There are many refuahs found in Shas that we are instructed not to rely on. for instance, we don’t eat the liver of a rabid dog to cure rabies. If we are instructed not to rely on refuahs found in Shas, why do we rely on this one? Or, if we b’davkah perform metzitza b’peh to strengthen mitzvah observance in the face of rampant haskalah, why don’t we also adhere to the other Tamudic refuahs?

    Reb Yid
    Reb Yid
    11 years ago

    There is risk to everything in life. The gemara acknowledges there is risk to bris milah in general, which is why if two brothers died from milah we don’t circumcise the third, but we don’t abandon milah entirely to prevent the first two fatalities. There is a risk of death from driving in a car, but we don’t ban cars, or even make people sign a consent form saying “I know this auto trip might be my last.” Apart from medical procedures and for liability reasons, the only thing that requires a consent because of risk is bris milah with metzitzah bepeh. Does that not strike you as a bit odd, if not downright discriminatory?

    Adam_Neira
    Adam_Neira
    11 years ago

    U.S. District Judge Naomi Reice Buchwald has made the right decision here.

    LashonTov
    LashonTov
    11 years ago

    We have seen from even recent history that when we as a Jewish people fail to enforce our own Torah, Hashem sends the enforcement through outside means. The Nuremberg Laws of Nazi Germany were a prime example. Do you think this was the first time Metzitza B’PEH has been cited as a sakana? Absolutely not!
    And remember as well that it is not Metzitza that is the sakana, it is the B’PEH method that is potential danger now that Herpes Simplex 1 is so prevalent in our society. (Jan. 7, 2005 — A study led by Dr. Herbert Kaufman, Boyd Professor of Ophthalmology at Louisiana State University Health Sciences Center in New Orleans, published in the January issue of Investigative Ophthalmology & Visual Science, found that 98% of the participants who are healthy individuals with no evidence of any symptoms did in fact shed herpes simplex virus type I (HSV-1) DNA in their tears and saliva at least once during the course of the 30-day study.)
    We routinely screen blood now for HIV due to the changes in our society. And every year at Pesach we are told to do Bedikas Chometz with flashlights instead of candles due to the danger. So why not change the Metzitza method used to be safer for the child?

    Ben_Kol
    Ben_Kol
    11 years ago

    Because we failed to protect our children from mbp, the city is doing it for us. We should be ashamed of ourselves.

    JoeGrossJR
    JoeGrossJR
    11 years ago

    This is the only quote attributed to Mark Twain that I actually found.
    ”…If statistics are right, the Jews constitute but one percent of the human race. It suggests a nebulous dim puff of stardust lost in the blaze of the Milky way. properly, the Jew ought hardly to be heard of, but he is heard of, has always been heard of. He is as prominent on the planet as any other people, and his commercial importance is extravagantly out of proportion to the smallness of his bulk. His contributions to the world’s list of great names in literature, science, art, music, finance, medicine, and abstruse learning are also away out of proportion to the weakness of his numbers. He has made a marvelous fight in this world, in all the ages; and had done it with his hands tied behind him. He could be vain of himself, and be excused for it.

    The Egyptian, the Babylonian, and the Persian rose, filled the planet with sound and splendor, then faded to dream-stuff and passed away; the Greek and the Roman followed; and made a vast noise, and they are gone; other people have sprung up and held their torch high for a time, but it burned out, and they sit in twilight now, or have vanished. The Jew saw them all, beat them all, and is now what he always was, exhibiting no decadence, no infirmities of age, no weakening of his parts, no slowing of his energies, no dulling of his alert and aggressive mind. All things are mortal but the Jew; all other forces pass, but he remains. What is the secret of his immortality?”

    – Mark Twain
    (“Concerning The Jews,” Harper’s Magazine, 1899)

    11 years ago

    I don’t understand.
    If all the Rishonim and Poskim write, that the reason for doing MBP is “Sekanah Hi L’yeled”, how could anyone argue that MBP is part of the Mitzvah?
    L’Halocho, MBP is like raising your head out of the water after Tevilla shel Mitzvah. You’re still involved in the activities of Tevilla but its no longer a Mitzvah.
    If MBP would be part of the Mitzvah, we would do, it even when we Malleh older children who are Balei Tshuvah.

    Shtarker
    Active Member
    Shtarker
    11 years ago

    Nothing new here. If a gentile does something we don’t like they’re a Greek or a Roman or a Nazi. If a Jew does something we don’t like they’re an apikoros, a koffer, a Zionist, etc. And everyone brings ma’areh mekomos to prove their opinion. This is why Reform, Reconstructionist, etc. came into being.

    MIESQ
    MIESQ
    11 years ago

    I t is well settled practice for government to intercede on behalf of people who cannot act on their own behalf such as infants. Similarly it seems equally well settled in the legal community to completely misunderstand the morals, mores and sensibilities of communities they are not a part of. While facilitating informed consent may ordinarily be laudable in this instance it is the imposition of the general society’s values upon the Orthodox Jewish community. Such a governmental intrusion particularly when dealing with a historically persecuted group is egregiously odious. Historically various benevolent government sought to “help” the Jews by legislating against certain Jewish practices.
    The failure of the attorneys and Judge listed in the article who appear to have Jewish family names to recognize the Metziza B’Peh permission slip is akin to the Czar legislating against Jewish dress or the Russian and latter Polish authorities demanding secular education against the Yeshivoth