Buchwald retraced the controversy, noting that then-Health Commissioner Thomas Frieden penned "An Open Letter to the Jewish Community" in 2005 warning parents about the practice and the possibility of infection.
But despite the aggressive public information campaign, department officials felt that serious medical risks remained to warrant the drafting of the regulation in 2012.
"Facing what appears to be a strong scientific consensus that direct oral suction puts infants at serious risk of HSV-1 infection, plaintiffs concede that it is 'biologically possible' for HSV-1 to be transmitted through oral contact with an open wound on the genitals," Buchwald wrote.
What the mohels disputed, she said, was whether that had ever actually happened during a metzitzah b'peh. Rather than challenge the science, she said, they chose to "limit their expert testimony to attacking the eleven cases of neonatal herpes" linked to the practice.
Contrary to the plaintiffs' position, Buchwald said that strict scrutiny did not apply to the First Amendment challenge here because "the regulation neither compels speech nor impermissibly burdens plaintiffs' free exercise of religion."
"Nowhere in the regulation are mohels required to provide a consent form to parents or even inform them that such a form exists," she said. Parents can obtain the form themselves and give the signed form to the mohel "without any communicative action by the mohel."
'Legitimate' Concern
As to free exercise of religion, Buchwald said the language of the regulation is neutral and "this is a case where societal harms, namely neonatal HSV-1 infection and the undermining of parents' ability to make informed decisions about protecting their children's health, are 'legitimate concern[s] of government for reasons quite apart from discrimination.'"
The judge said the health board heard from national medical organizations before it approved the regulations and the amicus submission and "the testimony of numerous highly prominent infectious disease experts have provided further evidence" that the practice "poses a serious risk of HSV-1 transmission."
Furthermore, "Not only does the regulation have several valid secular objects," she said, "but there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular."
Applying rational basis rather than strict scrutiny review, Buchwald said the regulation "easily" passes the test, as the interests of both protecting children and informing parents are compelling and the measure imposed by the government is rationally related to protecting those interests.
Michelle Goldberg-Cahn, senior counsel at the Law Department's administrative law division said in a statement, "We are gratified the Court is allowing this significant public health rule to proceed unimpeded."
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