N.Y. mayor must outlaw dangerous circumcision rite before another baby dies

By Rabbi Eric H. Yoffie (Ha'aretz)
December 31, 2014

New York Mayor Bill de Blasio needs to be more concerned about the death of Jewish children and less concerned about the clout of ultra-Orthodox rabbis who have done nothing to prevent those deaths. His administration needs to do whatever is necessary to outlaw metzitzah b’peh (MBP), the controversial circumcision ritual according to which the mohel, the ritual circumciser, cleans the wound by sucking the blood from the circumcised penis with his mouth.

This is a matter of great urgency. Last week, New Yorkers learned that yet another newborn has contracted herpes after undergoing a brit milah, a ritual circumcision, that included MBP. The failure to put an end to a practice that is killing and maiming children is political cowardice. De Blasio is not the first mayor to confront the problem; he inherited it from his predecessor, who should have done something to stop it and did not. Nonetheless, it is on de Blasio’s plate now, and the city looks to him to find a solution before more lives are lost or irreversibly damaged.

The risks of MBP are well-known. Jewish religious authorities have been worried about the health dangers since the 1830s. More recently, health officials have noted that when oral suction is carried out by someone infected with oral herpes, the procedure is potentially fatal to infants, who have an undeveloped immune system. Israeli pediatricians raised the issue in 2004, and in 2005, the Commissioner of the New York Department of Public Health called for MBP to be halted. In 2012, the department’s deputy commissioner for disease control declared emphatically that “there is no safe way to perform oral suction on an open wound in a newborn.”

One might think that in light of the strong views of medical experts, the religious authorities committed to the practice might reconsider. But that has not happened. When New York first contemplated taking some kind of action, 200 ultra-Orthodox rabbis signed a statement condemning the “evil plans” of the health department, adding that “it is clear to us that there is not even an iota of blame or danger in this ancient and holy custom.”

The department has confirmed 17 cases of herpes resulting from MBP since the year 2000. Two of the babies died, at least two suffered brain damage, and the strong possibility exists that there may be many other unreported cases. Nonetheless, the city estimates that MBP is performed 3,600 times per year in New York.

The reasons for the mayor’s reluctance to tackle this matter are hardly a mystery. Hasidic Jews, the element of the ultra-Orthodox world most committed to the practice of MBP, are a large and influential constituency in New York City. Members of their community vote, usually the way that their rebbes, rabbinical leaders, tell them to. Mayor de Blasio, like other mayors before him, wants the rebbes in his camp. All of that is understandable, to a degree. But there are times when responsible leaders need to defend the helpless – in this case infants threatened with bodily harm. They need to care more about principle than politics and more about the next generation than the next election. This is one of those moments.

The city currently deals with the problem by requiring mohels to advise parents of the dangers of MBP and then obtain a written consent form before performing it. This procedure was implemented in 2013 by the Bloomberg administration. Although the Hasidic community challenged the rule in court, where the matter is still under review, it was of little help to the children. The requirement has been enforced sporadically, if at all, and parents may or may not understand what they are being told. More fundamentally, parents are still permitted to subject their infant children to a medical procedure that could endanger their lives.

When the physical welfare of children is threatened, the institutions of the state have an obligation to intervene. If parents deny their children essential medical care or allow them to ride in an automobile without an approved car seat, the government can take action under U.S. law to protect the children. So too must the government do what is necessary to prevent parents from subjecting their children to a procedure that can infect them with herpes and threaten their lives.

To be sure, first amendment issues are at stake here. If MBP were prohibited by the city, the Hasidic community would surely challenge the policy on first amendment grounds. Such a challenge would be appropriate, even welcome. As a religious minority, American Jews attach special importance to the first amendment, the noble sanctuary of our most precious freedoms.

But constitutionally-guaranteed freedom of religion does not give a religious group the unrestricted right to put the lives of their children in danger. Religious practice is given a great deal of latitude, but the general rule is that the authorities may intervene if there is a compelling government interest to do so and if the proposed law is drawn in as narrow a way as possible to respond to the need in question. It should be possible to draft a statute prohibiting MBP that meets these requirements.

The de Blasio administration, to its everlasting shame, has not even tried. It keeps asserting that it will find a way to protect children through dialogue “with the community.” But there’s not the slightest indication that dialogue will work, or even that’s it’s been seriously attempted. And if Hasidic authorities won’t cooperate in putting an end to MBP, the mayor must take action.

It should be noted that virtually all of the great legal authorities of the Jewish world – the Chofetz Chaim, the Chazon Ish, Rav Moshe Feinstein, Rabbi Yosef Dov Soloveitchik – permitted methods other than MBP to be used to clean the circumcision wound. And at a time when efforts are being made to ban circumcision altogether, the use of MBP alienates young Jews and discourages them from practicing ritual circumcision at all. This is a tragedy since brit milah is an ancient and sacred ritual that is fundamental to Jewish practice. And when done in a way that is acceptable under Jewish law whilst remaining consistent with modern medical standards, it is not only perfectly safe but medically beneficial.

But these are Jewish concerns and not mayoral concerns. The mayor’s job is to set aside political pressures and protect infant children who are being subjected to life-threatening procedures on his watch. Let us hope that Mayor de Blasio will do so, and soon.

Rabbi Eric H. Yoffie served as president of the Union for Reform Judaism from 1996 to 2012. He is now a writer and lecturer living in Westfield, New Jersey.