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.
As 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.
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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Akiva Shapiro is a litigator at Gibson Dunn in New York.
Akiva Shapiro is a litigator at Gibson Dunn in New York.