By Dan Goldberg and Sally Goldenberg (Capital New York)
February 26, 2015
The fate of a compromise between the de Blasio administration and some Orthodox Jewish sects on a risky circumcision procedure now depends on the New York City Board of Health, which must vote to repeal a rule that requires parents sign a consent form alerting them to the potential dangers of the ritual.
The board members, who are supposed to be apolitical and concerned only with public health, are being asked to vote down a policy meant to mitigate risk on the grounds that it is unenforceable.
Neither the mayor nor the health department is questioning the link between the ritual called metzitzah b'peh—which involves a mohel orally sucking blood from a baby's wounded penis—and neonatal herpes, nor is the administration conceding the 2012 requirement put in place by the Bloomberg administration violates religious freedoms.
Instead, Mayor Bill de Blasio is saying the city can't enforce the rule, so the rule needs to change.
“It's based on the real world realities of a community that the city needs to relate to respectfully,” de Blasio said in Albany on Wednesday.
The mayor was at the Capitol to testify on the governor's budget but was stopped often in the halls by Orthodox Jews looking to thank him personally, shake his hand or smile for a picture.
Repealing the rule would be an unusual move for a board—made up of Bloomberg appointees—that has been known for its aggressive enforcement actions.
Many of the health initiatives the board proposed and passed during the last 15 years were initially unpopular but have since become national models. The board banned smoking in bars and trans-fats in foods, for example. Most recently, it tried and failed to regulate the portion size of sugar-sweetened beverages.
Voting to overturn the metzitzah b'peh decision would be a recognition that the board's power to affect change is limited by an affected group's desire to accept that change, and that decisions on city health policy aren't immune to the realities of city politics.
The goal remains to reduce the incidences of neonatal herpes. But de Blasio is telling the board of health that the best way to do that is to abandon the consent forms, which these communities abhor and routinely ignore, allow metzitzah b'peh to continue and try to weed out infected mohels while educating the communities about the risks of the practice.
The administration says that the deal, similar to one struck by Rockland County health officials with local Orthodox communities, is the best they could have made.
“Our goal has been to communicate risk associated with the practice [of] direct oral suction, also known as metzitzah b'peh, and working with the community will improve our ability to do so,” health commissioner Dr. Mary Bassett said in an email. “The new policy gives us a better chance to succeed because it will foster cooperation with a community that is committed to preserve this religious ritual.”
It will also end a lawsuit that contended the city's consent forms were an infringement upon religious freedom, and keep a promise de Blasio made while he was campaiging for mayor and trying to woo a bloc of voters he has been close to for years.
“I think this is an embarrassing political capitulation which is not based on the science or the opinions of leading experts in herpes epidemiology and clinical care,” said Dr. Jonathan Zenilman, a professor of medicine at the Johns Hopkins University School of Medicine and chief of the infectious diseases division at the Johns Hopkins Bayview Medical Center.
Zenilman signed an affidavit on behalf of the health department and last month was a go-to source when the department was looking to defend its policy to a reporter.
“I cannot speak for the health department officials, but the science is pretty clear and has been obfuscated by the interest group involved,” Zenilman said. “During the meeting of the Board of Health in 2012, which approved the informed consent rule, there was a contingent of the Board of Health which wanted to ban the practice outright.”
Dr. Joel Forman favored a stricter policy, according to records obtained by The Forward, and Bruce Vladeck told the health department’s general counsel, Tom Merrill, in an email: “I’m not unmindful of the politics, but the way in which these folks are flouting our rules is a disgrace and an embarrassment. ... I think the Board of Health is entitled to know what enforcement actions the Department is planning. I would support anything real.”
Vladeck, on Wednesday declined to comment ahead of the board's March meeting, and Forman did not respond to a request for comment.
Drs. Marlon Brewer, Deepthiman Gowda, Susan Klitzman and Lynne Richardson also declined to comment. Dr. Sixto Caro could not be reached.
Pam Brier, president and C.E.O. of Maimonides Medical Center and a board member, agrees with the administration. The policy, she said, was well intentioned, but in the face of clear evidence it wasn't working, something new must be tried.
“I like this proposal,” she said. “I think it's promising. I think that the current arrangement was well intended but didn't really pan out. Would I like to wave my magic wand and make sure that no other baby gets infected with herpes? Yes, I would, but this is a move in the right direction.”
The de Blasio administration's unprecedented inroads with the Orthodox community will do more to keep infants safe than any Bloomberg policy, the mayor said.
“The policy of the previous administration achieved precious little,” de Blasio said. "It was rejected by community members. It wasn't implemented, it wasn't enforced, it was unenforceable in fact. So you know, in the end, the previous administration got to say they did something but it really didn't, in my view, do enough to protect our children.”
This new policy will be different, the administration says, because of cooperation and education.
“It starts in the hospital and the relationship between the mother and her doctor, and the hospital in which she has the child,” de Blasio said. “Information is provided right there about the practice—including the option for the mother to say she wants to opt out, the opportunity to talk to health department officials and get more information. That's a sea change right there.”
Education has been tried before.
The Bloomberg health board, before it voted for the consent forms, pursued several educational measures designed to disseminate information concerning the risks of metzitzah.
In 2005, the health department began distributing “An Open Letter to the Jewish Community from the New York City Health Commissioner,” which stated the department’s position that metzitzah had infected several infants in New York City with the herpes virus, including one child who died. The letter cited peer reviewed scientific studies asserting an association between metzitzah and H.S.V. transmission to infants and, in addition, recommended that infants being circumcised not undergo metzitzah.
The department also distributed a fact sheet entitled “Before the Bris: How to Protect Your Infant Against Herpes Virus Infection Caused by metzitzah b’peh.” which contained a warning that “[b]ecause there is no proven way to reduce the risk of herpes infection posed by metzitzah b’peh, the Health Department recommends that infants being circumcised not undergo metzitzah b’peh.”
The lack of success of this education campaign is what led the Board of Health, in 2012, to pass the consent form rule, and defend that rule in court.
Now, the question is whether the fact that a group ignores a regulation is a good reason to change the regulation.
“I don't know the answer but I think compliance is a potential issue with either approach,” said Dr. Anna Wald. who assisted in drafting guidelines on the management of H.S.V. infection for the federal Centers for Disease Control and Prevention. She also filed an affidavit on behalf of the city's health department.
In exchange for abandoning the consent forms, the coalition of rabbis negotiating with City Hall agreed that if a baby is diagnosed with H.S.V.-1, the community would identify the mohel who performed the bris, or circumcision, and ask him to undergo testing. If the mohel tests positive for H.S.V.-1, the city's health department will test the D.N.A. of the herpes strain to see if it matches the infant's. If it does, the mohel will be banned from performing the ritual for life.
Wald believes de Blasio's policy is “in some ways ... a step forward as it appears that the Orthodox community is admitting that the HSV-1 infection is a result of the ritual.”
“However, it seems to me that the bar for banning an individual from performing the ritual is very high," she said in an email. "Obtaining a virus and showing that the strain is identical to that of the infected baby is not a simple task, and may be not doable without—or even with—full participation of the mohel.”
The problem with testing is that people who can transmit the virus are not always contagious. Shedding of the virus is intermittent, and swabbing would have to be done over a long period of time to a cooperative person who is not taking antivirals.
“I am not sure how you can ascertain that someone is adherent to that, especially if they are invested in an outcome that shows them to be negative for the virus,” Wald said.
So the premise is that Orthodox communities who were so resistant to a signed consent form warning of a danger will be actively cooperative if a baby contracts herpes.
On this, de Blasio has faith.
“By taking away a part of the policy that people in the community felt was onerous and disrespectful of their traditions, we have gained a very firm commitment, which I absolutely believe in,” he said.