New York City's decision to require parental consent before a mohel can use his mouth to draw away blood from the wound after an infant circumcision will stand following a ruling by a federal judge.
Southern District Judge Naomi Reice Buchwald (See Profile) denied the motion for a preliminary injunction against a Board of Health regulation approved in September out of concern that the practice by mohels in ultra-Orthodox Jewish communities exposes infants to the herpes simplex virus and can result in brain damage or death.
Buchwald made that ruling in Central Rabbinical Congress of the USA and Canada v. New York City Department of Health & Mental Hygiene, 12 Civ. 7590, a case she said "implicates interests of the highest order." Plaintiffs asserted the regulation "burdens one of the foundational rituals of their Jewish faith" while city officials argued they were acting to protect infants "at a serious risk of potentially deadly infection."
The injunction was sought by the Central Rabbinical Congress of the USA and Canada, which claimed that the addition of §181.21 to the New York City Health Code requiring written parental consent for the practice, called metzitzah b'peh, violates the First Amendment by infringing on the right to the free exercise of religion and by compelling speech.
Several mohels and organizations representing mohels sued on Oct. 11 seeking declaratory and injunctive relief and questioning the belief that the herpes simplex virus, HSV-1, has been transmitted by the practice.
Instead of seeking a temporary retraining order, the parties agreed to a stay of enforcement pending oral argument on Dec. 18 and Buchwald's decision.
Before hearing from the parties in court, Buchwald considered the filings of amici in favor of the regulation: the Infectious Diseases Society of America, the Pediatric Infectious Diseases Society, the American Academy of Pediatrics and the American Sexually Transmitted Diseases Association.
Attorneys for the mohels argued that the practice is safe and that several precautions are taken, including the use of antiseptic mouthwash.
Attorneys for the city countered that they believe 11 cases of herpes simplex are likely to have been caused during the performance of metzitzah b'peh during a bris since 2000, that two infants have died and two more have suffered brain damage.
The stay in the case ended Jan. 10, when Buchwald issued her 93-page opinion explaining "a continued injunction in the case would not serve the public interest."