Law Regulating Bris Milah Ignites Court Battle

By Debbie Maimon, Yated

A newly-adopted NY City Health Code amendment that subjects bris milah to government regulation has galvanized New York’s religious community to take the extraordinary step of challenging the law’s constitutionality in federal court.

The amendment aims at banning metzitzah b’peh (mbp) by forcing parents to sign incriminating waivers before the ritual can be performed, and coercing mohelim to betray their faith with statements maligning mbp as life-threatening to newborns.
Yerachmiel Simins addressing Sunday’s press conference. –JDN Photo
Major organizations representing the full spectrum of New York’s religious communities – from Chasidic to Litvish to Modern Orthodox and various shades in between – have joined ranks in filing for a preliminary injunction against the law in the Southern District of New York, under Judge Naomi Reice Buchwald.

This is the first move in a legal strategy that aims for a permanent injunction – a ruling that will in effect declare the Health Code amendment unconstitutional.

Uniting as plaintiffs in the court action are the CRC (Central Rabbincal Congress of the USA and Canada) representing Satmar communities; Agudath Israel of America; and the IBA (International Bris Association), representing Lubavitch. The mohel plaintiffs are Rabbi Samuel Blum, Rabbi Aharon Leiman and Rabbi Shloime Eichenstein.

The lawsuit marks a sweeping solidarity among communities whose ideological differences often run deep, tending to overshadow their core unity. The unprecedented government intrusion into bris milah has driven that unity to the surface.

CITY SPURNS AGUDAH’S REQUEST FOR POSTPONEMENT

Filed in federal court on Oct. 11 by the acclaimed Jones Day law firm, the action against the City came after efforts by Jewish leaders to negotiate with city officials at a special meeting in September were spurned.

They included senior Agudath Israel officials and Rav Yisroel Belsky, rosh yeshiva of Yeshiva Torah Vodaath, had asked for a postponement on the Board Of Health vote on the anti-metzitzah b’peh amendment. They wanted an opportunity to demonstrate to city officials the unreliability of the health report that gave rise to the controversial amendment.

Their arguments would be futile, they were told. “No matter what you say,” Mayor Bloomberg informed Rav Belsky, “I will not change my mind.”

That inflexible stance along with the impending crackdown on bris milah sparked an international outcry, with rabbinic authorities in the United States, Israel, Canada, Belgium, Britain and Australia uniting in condemning government intrusion into Jewish observance.

They issued impassioned letters and a kol koreh bearing the signatures of the Torah world’s premier leadership, urging New York’s Jewish residents to oppose the city’s assault on Jewish ritual.

EYES ON JEWISH CAPITAL OF DIASPORA

The amendment – and the unreasonableness and intransigence in which it was being pitched by the government – was viewed by Torah leaders across the world as setting a dangerous precedent that threatens bris milah everywhere.

If government designs against mbp in New York City were to prevail, it was felt – in spite of the region’s strong Jewish presence and political will – it would likely embolden circumcision foes to mount campaigns against bris milah just about anywhere.

Forging ahead with its plan, the Board of Health on September 13 passed the amendment, announcing its enforcement beginning October 21. The NYC law will compel mohelim to obtain written informed consent from parents prior to performing a bris with metzitzah b’peh.

The law requires mohelim to advise parents that the DOH advises that mbp is a dangerous practice and could likely kill their baby.

“[Mbp] should not be performed because it exposes an infant to the risk of transmission of herpes simplex infection, which may result in brain damage or death,” the consent form will state.

RELIGIOUS COMMUNITIES UNITE

In response to this unprecedented assault on religious practice, leaders of New York’s diverse religious communities joined forces, consulting with top legal experts and pooling resources and expertise.

They hired one of the most brilliant and dynamic legal teams in the country to challenge the Health Code amendment in federal court. One of the first moves by Jones Day attorneys Shay Dvoretzky and Yaakov Roth was to hammer out a negotiated agreement with the City to stay the law’s enforcement until November 14, the date of the federal court hearing.

This was followed by the filing of the lawsuit in federal court, in which the attorneys argued that the amendment violated the First Amendment rights of the plaintiffs in two ways; by encroaching on their religious practices and by compelling mohelim to voice statements they utterly reject.

The brief argues that the basis for the DOH’s incursion into religious freedom is factually wrong. The study used by the DOH to support the amendment, which found that mbp poses an additional risk of transmission of herpes simplex virus, actually shows the opposite, the lawsuit contends. Mbp poses no greater risk than that which exists in the general population.

The brief also questioned the bizarre situation in which the DOH amendment reveals a fixation with “protecting” the minuscule number of male infants from religious families from contracting herpes (by outlawing mbp).

What of the much larger combined group of herpes-infected newborn baby girls and non-Jewish babies? Where is the DOH’s corresponding “compelling interest” in protecting these infants? Where is their concern for tracing the source of infection in this group? Should we not be seeing a parallel campaign by the DOH to alert parents and caregivers to important hygienic and safety measures that would protect all infants?

The DOH’s exclusive focus on baby boys from religious families, and its glaring neglect of risk factors other than mbp, is increasingly suspect.

LANDMARK PRESS CONFERENCE

With legal events unfolding so swiftly and headlines about the lawsuit appearing during the Yomim Tovim, a good portion of the religious public has remained largely in the dark about these developments.

To raise community awareness, a press conference was called Monday, at which representatives of CRC, Agudath Israel and IBA, the organization plaintiffs in the lawsuit, gathered with correspondents from an array of religious news media to provide background and updates on the case.

All frum news outlets were invited to send representatives. In addition to Yated, correspondents came from Mishpacha; Hamodia; Agudah; Chabad.org; Der Blatt; Der Yid; Kol Mevaser; VIN; COLLive and YeshivaWorld News.

Sharing the dais at this unusual press conference were Rabbi Gedaliah Weinberger, Chairman of the Board of Agudath Israel, Rabbi Chaim Dovid Zwiebel, Executive Vice President of Agudath Israel, Rabbi Moshe Dovid Niederman, spokesman for the CBC (Satmar) and Rabbi Levi Heber, founder and president of the IBA (Chabad).

These individuals, representing the organization plaintiffs in the lawsuit – and by extension, New York City’s vast religious population – shared their roles and perspectives with the assembled.

The profound impression conveyed was that in standing shoulder to shoulder to protect the inviolateness of bris milah, a remarkable unity had replaced divisiveness, and in that unity lay great strength.

Read more here.

{Matzav.com Newscenter}