On The Decision by the New York City Board of Health to Repeal the Metzitzah B'Peh Consent-Form Regulation, On Same-Sex Marriage, and On the Question of Antisemitism

By David Balashinsky

Just over a week ago the New York City Board of Health shirked its responsibility to protect public health and the health of New York's neonates within the relatively small community of Ultra-Orthodox Jews by repealing a Bloomberg-era rule that imposed only the most modest regulations on the ritual of metzitzah b'peh. Metzitzah b'peh, or "oral suction circumcision" as it is sometimes called in English, is a circumcision ceremony in which a mohel amputates an infant's foreskin, then sucks the infant's penis in order to remove the blood.   As the New York Times reported back in 2012, "Between 2004 and 2011, the city learned of eleven herpes infections it said were most likely caused by the practice.  Two of those babies died; at least two others suffered  brain damage."  In response, the Board of Health in 2012, instead of banning this practice outright as it ought to have done, merely issued several impotent regulations.  The Times reported on these regulations (September 13, 2013), as follows:

In an effort to educate parents, the city will now require ritual circumcisers to inform parents in writing if they will use direct oral contact during the circumcision, and must receive their written consent. The consent form states that the health department advises against the procedure because of the possibility of herpes transmission, which may cause brain damage or death. The mohelim must keep that permission document for one year. Failure to comply may result in warning letters or fines to the mohelim. Enforcement, though, will be based on investigation of specific complaints and herpes cases, not spot checks or raids, and there are no mandatory punishments. . . .

For the record, "oral suction circumcision," as occurs in "metzitzah b’peh," is practiced by adherents of Haredi Judaism (such as Hasidic Jews and the Satmars) who are a small fraction of Orthodox Jews.  Orthodox Jews themselves are a fraction of religious Jews. Religious Jews (of all stripes) are themselves a sizable fraction but a fraction, nonetheless, of those who identify ethnically and culturally as Jewish. And Jews, broadly, comprise a mere 1.4% of the population of the U.S.  In other words, oral suction circumcision is an exceedingly rare practice.  Yet, lest anyone think that I am offering an excuse or rationalization for the legality of this practice on the grounds that it is limited to a minority of a minority of a minority, I am not.

I am speaking as a Jewish man when I say that the practice of oral suction circumcision is barbaric and its continuation a disgrace to all Jews.  It is manifestly unsanitary and should absolutely be abolished - if not by religious Jews themselves, then by the New York City Board of Health.  If not by the New York City Board of Health, then by the New York State Department of Health.

The regulation requiring the signing of a consent form that had been issued in 2012 by the city's Board of Health was, as the Times subsequently reported earlier this year (2015), routinely ignored.  Then, in 2014, there was a significant spike in the number of herpes infections that are believed to have been caused by this practice. As the Times noted,

City health officials have advised that the ritual should never be performed, but the growing ultra-Orthodox Jewish community that cherishes it represents a crucial political constituency for Mr. de Blasio. So he pledged during his campaign to rescind the consent requirement on "Day 1" of his administration and find a solution that would be more acceptable to Orthodox leaders, while still protecting children's health. 

That "solution," was proposed by the de Blasio administration  in February of 2015. "Administration officials," the Times continued, "announced a [proposed] new policy that they described as a compromise between reducing health risks for infants and protecting the religious freedoms of those who cherish the ritual. . . ."  That compromise did away with the signed consent form and instead mandated a series of diagnostic tests in cases in which a mohel was suspected to have transmitted herpes to infants during this ritual.  In the case of a DNA match (confirming the source of the transmission), the mohel would be banned for life  from performing oral suction circumcision.   However, under the proposed regulations, "a mohel who [was] found to have herpes would still be allowed to perform the ritual if a DNA test does not match his virus with the strain present in the infant." This, despite the fact that "It can sometime require multiple DNA tests  to establish a match."  This wholly inadequate regulation, until about a week ago, still needed to be approved by the New York City Board of Health.  It was not. Instead,  the health department, it has now been announced, will merely "ask hospitals to distribute a brochure to Orthodox families that warns of the risks of the ritual," thus doing away not only with the mandatory testing in cases of suspected herpes transmissions but even with the consent-form requirement.

This is not a compromise but a capitulation.  It is a naked and craven act of political expediency by de Blasio himself and, at the same time, and perhaps worse, a wholesale abandonment by the Department of Health of its stated mission "to protect and promote the health of all New Yorkers." It is incomprehensible that, to date, the New York State Department of Health has not simply banned this practice, superseding the city's accommodation of it.  After all, if the New York State Department of Health can require me, as a healthcare worker, either to get the annual flu vaccine or wear a mask all winter, I do not see why it cannot protect infant Jewish boys from this manifestly unsanitary and dangerous practice.

The claim that banning oral suction circumcision in particular and ritual circumcision in general  constitutes an infringement on religious liberty is frequently made.  And this claim is not only made by some religious Jews themselves.  No less august a defender of civil liberties, the ACLU of Northern California, incomprehensibly and to its shame, opposed - precisely on the grounds that it constituted an infringement of religious liberty - the proposed ballot initiative in San Francisco in 2011 which, had the voters been permitted to vote on it and if passed, would have outlawed non-therapeutic circumcision in most cases.  The ACLUNC issued a press statement  in which its managing attorney, Jory Steele, is quoted as follows: "Conducting a popular vote on whether to criminalize a minority religious practice fosters sectarian strife. This initiative would have undermined the right to religious liberty that we cherish in a pluralistic society."

The claim of "religious liberty" as a carte blanche to violate the rights of others has, of course, been much in the news lately in the context of same-sex marriage.  To its credit, the ACLU has condemned Kim Davis's actions in no uncertain terms.  Writing on behalf of the ACLU on its website, the senior staff attorney for its Program on Freedom of Religion and Belief, Heather L. Weaver, stated, "Davis's duty as a public official is to enforce civil law, not her own personal religious views."   I could not agree more.  But if invoking religious liberty as a justification for discriminating against other citizens who are attempting to exercise their constitutional right to marry is wrong, invoking religious liberty as a justification for performing genital mutilation on infants is even more wrong.  It is not just morally and logically inconsistent, then, but, frankly, hypocritical for the ACLU's Northern California  affiliate to have staked out a position, as it did, on involuntary circumcision that is fundamentally opposite that of the ACLU's position on marriage equality.  On the one hand, the ACLU argues that the claim of religious liberty cannot be used to deny others their constitutionally established rights: in this case, the right to marry the person of one's choice, irrespective of sex.  On the other hand, the ACLUNC argued that the claim of religious liberty can be used to deprive others of their constitutionally established rights: in this case, the right not to be subjected to genital cutting.   (This right is rooted in the "right to be let alone" and numerous other rights as understood in the common law and as articulated in the U.S. constitution, numerous state constitutions and other statutes.  See Peter W. Adler, Is Circumcision Legal?  for a thorough legal analysis of the issues related to forced male genital cutting).

Individual government officials and agencies have both a legal and an ethical duty to carry out their mandates in accordance with the law, with public policy, and on the basis of rational objectives that further the interest of the public good.  This is no less true with respect to ritual circumcision than it is with respect to same-sex marriage.  Thus, the mandate of the New York City Board of Health - a secular governmental agency - to protect public health is not simply nullified in those cases when its public-health policies conflict with manifestly unhealthy religious practices.

The parallel between the claim of religious liberty on behalf of the right to discriminate against LGBTQ persons and the claim of religious liberty on behalf of the right to perform an inherently dangerous and potentially deadly ritual on an infant is inescapable.  Religious liberty ends where another person's rights begin.  The First Amendment guarantees each American the freedom to practice her or his religion.  It does not guarantee each American the right to impose her or his religious beliefs on another person.  That is especially the case when doing so carries the risk of brain injury and death.  Indeed, this principle - that one's zone of freedom to act is delimited by every other person's zone of freedom not to be harmed by one's actions - is no doubt what guided Congress when it did not allow for a religious exemption to the national ban on female genital mutilation back in 1996. Exactly by this reasoning, the right of infants not to be harmed by the ritual of metzitzhah b'peh - or, for that matter, by any non-therapeutic circumcision, whether performed for religious, cultural, or cosmetic reasons - supersedes the right of their parents to subject them to it.

Religious freedom as articulated in the First Amendment does not extend outward from the believer to include the bodies of others.  Otherwise, slavery could have found a safe haven within the ambit of the First Amendment since the Bible itself countenances slavery (there were many denominations before the "Great Schism" and before the Emancipation Proclamation that used the Bible as a justification for slavery).  By the twisted logic of those who claim the right, on the basis of "religious freedom," to mutilate the genitalia of infant boys (or girls) (and infect them with herpes, into the bargain) anyone could claim the right to commit any act of assault, battery, or violence of every conceivable description on the basis of religious freedom. What about those religious sects that once practiced ritual human sacrifice and would still were it not outlawed?  Should an exemption to laws against homicide be made in order to accommodate human sacrifice?  A closer parallel exists in the U.S. federal law banning female genital mutilation.  The Congressional Findings that are an adjunct to the text of that legislation (click the Notes tab) state, in part, "The Congress finds that - the practice of female genital mutilation is carried out by certain cultural and religious groups within the United States" and that "the practice of female genital mutation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law. . . ."

Fortunately, not only do the vast majority of Jews not subject their infant boys to the inherently dangerous practice of oral suction circumcision but, encouragingly, more and more Jews are rejecting infant penile circumcision altogether.  That makes sense. After all, having had one's penis mutilated is not where Jewish identity comes from.  It comes from one's upbringing, one's values, one's cultural and ethnic heritage and, in the case of Judaism, it comes from one's religious beliefs.  If infant male circumcision were sufficient alone to confer "Jewishness" on those who have been subjected to it, the millions of non-Jewish American men who have been subjected to penile circumcision would in fact have become Jewish as a result. Conversely, were circumcision necessary to confer "Jewishness" on those subjected to it, there would be no Jewish women since Jewish women are never circumcised. Even some Talmudic scholars and rabbis have rejected the claim of the necessity of forced penile circumcision.  The fact is that there is a growing number of both secular and religious Jews who oppose involuntary infant male circumcision (see, for example, Beyond the Bris  and Jews Against Circumcision on Facebook).

Yet, because of the historical importance and putative centrality of the rite of circumcision to Jewish identity and religious practice, the question as to whether the campaign (which I enthusiastically support) to end routine penile circumcision is itself somehow antisemitic frequently and inevitably arises. Because it does, I think it important to address it head on, whenever it does.

I have no doubt that there are some antisemites in the genital autonomy movement, just as I am sure that there are antisemites involved in many other worthwhile causes, their antisemitism notwithstanding.  Indeed, I have tangled with a few of them myself in online forums several times when this subject has come up previously. Often their position amounts to something like this: "The reason infant male circumcision hasn't been banned is because the Jews defend it and they have so much power that it will never get banned." That's an almost-verbatim quote from someone posting in an online thread.  And it's always the collective the Jews, isn't it?   That's usually a reliable way to spot an antisemite - as though all Jews are in cahoots with one another and all think the same and act in concert as befits our secret cabal.  I have no doubt that there are antisemitic intactivists who are only too happy to have, in their capacity as antisemites, another club, in the form of Jewish defense of circumcision, with which to beat up on Jews.  But to those Jews who claim that the genital autonomy movement embodies, at its core, Jewish hatred, I would counter that - and I say this as a Jew - subjecting Jewish infants to genital cutting because they are Jewish constitutes the ultimate act of Jewish self-hatred. I would also ask, if you believe in a god who presumably loves us (I don't, but that's beside the point), why would "He" want us to injure our children's genitals?  It could also be argued that antisemites should, in theory at least, be only too happy to see male Jewish infants sexually mutilated. Why on Earth would an antisemite really care about harm being inflicted on Jewish infants?

All the way at the other end of the spectrum are those Jews who, without a shred of justification, denounce any and all efforts to ban non-therapeutic circumcision as antisemitic. I even saw a picture of a Satmar holding up a sign that read "Blood Libel" in protest of the effort merely to regulate and impose a modicum of medical common sense on the practice of oral-suction circumcision. (For those  unacquainted with Medieval European Jewish history, the "blood libel" was the canard made by Christians against Jews that Jews secretly murdered Christian children and used their victims' blood in the manufacture of matzohs. On the basis of these accusations, many hundreds and probably thousands of Jews were rounded up, tortured, and burned alive from time to time during the Early and High Middle Ages.  A form of this ancient conspiracy theory has, of course, been resurrected in the contemporary Q-Anon conspiracy theory.)  Opposing genital mutilation in general and oral suction circumcision in particular is not antisemitic and to claim that it is demeans Jews who have actually been the victims of antisemitism and antisemitic violence. To claim persecution in defense of the right to commit an act of violence and mutilation on another human being is contemptible and makes a mockery of the valid claims of actual Jewish persecution that are a part of Jews' collective history.

The effort to end male genital mutilation - whether as a fraudulent medical practice, as a cultural norm, or as a religious rite - is blind to race, religion, and ethnicity.  It is also blind to sex, inasmuch as the genital autonomy movement opposes female genital mutilation and intersex "corrective surgery" just as vehemently as it opposes male genital mutilation.   After all, the principle upon which all genital-autonomy movements are based is one and the same.  That principle is that every human being is born with an inherent right of ownership of her, his, or their body, and that no part of a person's body - including her, his or their genitals - may be permanently altered, scarred, mutilated or removed without that person's consent, and that they may not be subjected to any sort of surgery - even with the best of intentions - in the absence of an urgent medical necessity for doing so.

Genital autonomy is a human rights issue, and no one should understand the bedrock principles of human rights better than the Jewish people, precisely because of our history. Indeed, it is in no small part because of my own Jewish heritage that I feel a moral obligation to oppose and to fight male genital mutilation, whenever it occurs and for whatever reason it occurs.

 

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David Balashinsky is originally from New York City and now lives near the Finger Lakes region of New York.  He is a licensed physical therapist and writes about bodily autonomy and human rights, gender, culture, and politics.  He currently serves on the board of directors and as Director of Outreach for the Genital Autonomy Legal Defense & Education Fund, (GALDEF), he serves on the board of directors and advisors for Doctors Opposing Circumcision and serves on the leadership team for Bruchim.