Judaic Law in America

Last week, the New York City Board of Health voted unanimously to
require
written parental consent for a circumcision practice known as "direct
oral
suction" that segments of the Orthodox Jewish world believe is
required
under Jewish law. Prominent Orthodox Jewish organizations are up in
arms,
arguing that this is the first step toward greater government
regulation of
religious practices—a dangerous slippery slope that they fear could
end in a
total ban on circumcision. Some defenders of the practice, known as
mezizah
b'peh, say they will openly defy the new requirement to provide
parents with
information about the practice's health risks.
The ultra-Orthodox umbrella group Agudath Israel of America, known
simply as
the Agudah, has even gone so far as to shop for pro bono counsel to
bring a
lawsuit challenging the law. Ironically, by staking this position
Adugah has
positioned itself on the same side of the informed-consent issue as
Planned
Parenthood, which has sued a number of states challenging laws that
require
doctors to obtain written consent about the increased risk of suicide
for
women who have abortions.
AAs an Orthodox Jew and a constitutional litigator with a history of
successful suits against the city, I feel compelled to explain why the
lawsuit is doomed to fail. What's more, history shows that it will
probably
backfire. The more groups like Agudah oppose this law, the greater the
likelihood for more government regulation of religious rituals in the
future.
***/p>
According to an email from Agudah's general counsel, the group
believes that
written parental consent is unconstitutional on the grounds that it
interferes with "both freedom of religion and freedom of speech." The
freedom of religion claim can be disposed of easily: The regulation
does
not, in any way, limit religious practice. A circumcision provider—and
to be
clear, the regulation applies across the board to anyone performing a
circumcision, religious or secular, doctor or mohel—can continue to
perform
direct oral suction as he did the day before the regulation was
passed.
The law only requires that, prior to the circumcision, the parent or
legal
guardian must give written informed consent "in a form approved or
provided
by the Department," which must include notice that "direct oral
suction
exposes the infant to the risk of transmission of herpes simplex virus
infection and other infectious diseases." The issue, such as it is, is
the
form—and here's why:
The First Amendment generally forbids "compelled speech"—that is, laws
that
require a person to speak against their will and in opposition to
their
sincerely held beliefs, whether religious or otherwise. In trying to
prove
that the consent form does this, Agudah's case will undoubtedly focus
on
such seminal cases as Wooley v. Maynard, a 1977 Supreme Court case
invalidating a law requiring residents of New Hampshire to display the
state
motto, "Live Free or Die," on license plates because residents who
were
Jehovah's Witnesses did not agree with that as a life philosophy. The
group
will also probably cite West Virginia Board of Education v. Barnette,
a 1943
Supreme Court case that ruled that students who were Jehovah's
Witnesses
could not be compelled to salute the flag and recite the Pledge of
Allegiance in contravention of their religious beliefs.
Maynard and Barnette are important First Amendment cases. But they
deal with
laws that force a religious person to express an opinion or philosophy
that
is contrary to his religious beliefs. They say nothing about providing
factual information regarding potential risks to the recipient of a
medical
procedure. That body of case law—less well-known, but much more on
point
(and, I suspect, missing from Agudah's legal research)—makes clear
that the
government has broad authority to force those who perform medical
procedures
to provide such information, on the basis of the government's
fundamental
responsibility to protect public safety and health.
Two federal circuit court of appeals decisions from this past year,
Planned
Parenthood v. Rounds and Texas Medical Providers v. Lakey, make this
point
in the context of a medical procedure even more charged than
circumcision:
abortion. These decisions come out of a recent trend in the state
courts to
require doctors to provide information to pregnant women about the
health
risks of an abortion, and in particular compel them to disclose
studies
showing a higher risk of suicide in women who have abortions. Planned
Parenthood has vigorously challenged these informed-consent mandates
in a
number of jurisdictions on First Amendment grounds on behalf of
doctors who
argue that the state cannot compel them to speak to patients about
such
risks. Sound familiar?
Employing the framework laid out by the Supreme Court in its plurality
opinion in Planned Parenthood v. Casey (1992), both recent federal
circuit
court decisions uphold the challenged legislation on the grounds that
if the
information the state requires to be made available is "truthful and
not
misleading," and it is relevant to an informed decision as to whether
to
have the procedure done, the state can require that it be provided—
whether
regarding abortion or "any [other] medical procedure."
These are not the only such decisions. Courts have upheld informed-
consent
laws against "compelled speech" claims in the context of state laws
requiring disclosure of HIV status prior to intercourse, rejected
"compelled
speech" defenses in tort where communicable genital herpes was not
disclosed, and have come out in favor of the state in a number of
other
abortion-related cases. As the court said in the HIV case, the state
has an
"overriding, legitimate and compelling interest in preserving the life
of
its citizens," which gives it the authority to forbid "remaining
silent and
knowingly exposing others to an incurable disease."

New York's new regulations regarding direct oral suction fall squarely
within this line of cases. There is no question that the risk to an
8-day-old baby of contracting a potentially fatal herpes infection
from
direct oral suction is "relevant" to a parent's decision whether to
have the
circumcision performed in that manner. As long as the information
provided
is "truthful and not misleading," the city is in the clear.
The notice published with the proposed law from the Board of Health
suggests
that it is already well aware of the legal basis for the regulation.
It says
that between 2004 and 2011, it learned of 11 cases of "laboratory-
confirmed
herpes simplex virus infection in male infants following circumcisions
that
were likely to have been associated with direct oral suction." Two of
these
infants died, at least two others suffered brain damage, and, most
important, "[t]he parents of some of these infants have said that they
did
not know before their child's circumcision that direct oral suction
would be
performed." In addition, it says that since 2004, the Department of
Health
"has received multiple complaints from parents whose children may not
have
been infected who were also not aware that direct oral suction was
going to
be performed as part of their sons' circumcisions." The informed-
consent law
responds directly to these legitimate concerns. Under no fair reading
of the
law has the Board of Health overstepped its powers under the First
Amendment.
***
So, what of Agudah's argument that this law is only the first step
toward
full government regulation of circumcision, or even, in the fashion of
the
recent ruling of a German court, banning the ritual? One thing's for
sure:
If the Orthodox community continues to vehemently oppose this modest
consent
law it will encourage and likely lead to greater regulation of
circumcision
in the future. This is widely understood in the context of self-
regulated
industries. (Think baseball and steroids.) If a group or industry
agrees to
moderate self-policing and 30,000-foot government oversight, the
government
hangs back. But if they insist on complete autonomy, creating the
impression
that the industry thinks it is above the law, the government
inevitably
steps in and imposes more stringent regulation.
The same is true of religious groups. Just look at Mormons and
polygamy.
President Lincoln signed into law a ban on polygamy in 1862, but he
signaled
that he would not enforce the law for a time in deference to Mormons'
religious beliefs, hoping that they would put an end to the practice
without
government interference. But some prominent Mormons refused, insisting
vociferously that their religious practices trumped the law. Some even
rose
up in civil disobedience.
It didn't end well for them. In the years following Lincoln's ban, the
federal government stepped in to impose its authority and control by
seizing
church property and imposing criminal sanctions on polygamists. The
church
was nearly driven into the ground by the time it abandoned the
doctrine of
multiple wives in 1890.
Some in the ultra-Orthodox community have threatened to take a
similarly
hard line with the informed-consent law. Unfortunately, it's only the
latest
in a series of incidents in which the impression given by some in the
community is that they think they are above secular law. It's an
attitude
that fails to acknowledge and appreciate the unique-in-history
openness of
American society to minority religions, and especially to Jews.
Moreover, vehement opposition to this modest regulation will turn
popular
opinion against religious Jews by creating the impression that we put
tradition over the safety of babies, and that ritual matters to us
more than
life. And it will reinforce the mistaken impression in wider American
society that opposition to direct oral suction and opposition to
circumcision are one and the same, which they are not. England has had
some
modest form of regulation of religious circumcisions for a very long
time,
with no adverse consequences. Here in America, the government
regulates
marriage, even between religious individuals. I've never heard an
Orthodox
Jew complain about that.
If Agudah's lawsuit goes forward, it will very likely make bad law for
those
who care deeply about the rights of religious minorities and the value
of
religious autonomy—as did the cases that came out of Mormons'
rejection of
the regulation of marriage practices. The threatened circumcision case
will
make clear that the government has the authority to regulate and
restrict
religious practices when there is a risk to health and safety, giving
greater credence and legal authority for those who would go further
than a
mere informed-consent law and forbid certain religious practices
altogether—perhaps direct oral suction, or circumcision itself.

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