Don’t Fight Circumcision Law
A lawsuit against New York’s ‘oral suction’ law is misguided—and would backfire against the ultra-Orthodox
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.
Like this article? Sign up for our Daily Digest to get Tablet Magazine’s new content in your inbox each morning.
The White House’s response to the anti-Islam video is proof of the enduring influence of Edward Said’s ideas