Brooklyn mohel Rabbi Avrohom Cohn, chairman of the American Board of Ritual Circumcision, said his group would not have parents sign waiver forms, which the city is now requiring as a condition for performing metzitzah b’peh.
“He’s the mayor of the biggest city in the world, but I’m not going to listen to him,” Cohn said, referring to New York City Mayor Michael Bloomberg, who has strongly backed the new rules. “I have another mayor, the almighty, and I will do it his way.”
The regulation, put out by the city’s board of health, requires parents to provide a signed consent form to a mohel before that mohel may perform metzitzah b’peh. The technique, in which the mohel uses his mouth to suction off blood from around a baby’s penis after cutting the infant’s foreskin, has been found to transmit herpes simplex virus, which can cause serious injury, and even death, to infants.
On January 14, four days after Manhattan federal Judge Naomi Reice Buchwald denied a request for a preliminary injunction against the regulation, the city’s Department of Health and Mental Hygiene posted the consent form on its website in English and Yiddish. The rule came into force that day.
Orthodox defenders of the practice have filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit to reverse Buchwald’s ruling, but that is pending.
Defenders of metzitah b’peh argue that the DOHMH rule infringes on their religious rights, and some contest the medical consensus on the danger the technique poses to infants.
Most mohelim, including those who are Orthodox, do not employ metzitzah b’peh. They instead use a sterile glass pipette to draw off the blood. But the mostly ultra-Orthodox minority who do use metzitzah b’peh, including members of Cohn’s group, avow that this technique must be part of the circumcision ritual in order to fulfill divine commandments set out in the Torah and the Talmud.
Now that the DOHMH rule is enforced, Orthodox defenders of the practice appear to be split on how to respond. David Zwiebel, executive vice president of Agudath Israel, an influential umbrella organization for ultra-Orthodox groups, said his organization has not issued any directive advising whether or not parents should sign the consent forms.
Asked how the Aguda, as it is known, would respond to parents seeking its input on whether to sign the form, Zwiebel said, “We would tell them that the regulation is in effect” and that “they should act accordingly.” He added, “We are certainly not advising civil disobedience.”
The Aguda, which is one of the plaintiffs in the court case, did not have any public comment on groups that chose to violate the DOHMH regulation, Zwiebel said.
Rabbi David Niederman, a representative of the Central Rabbinical Congress, was another plaintiff who voiced confidence in the legal route. But Niederman, a communal leader of the Satmar Hasidic sect, which strongly defends metzitzah b’peh, said that in the meantime, his organization would not issue any directive on whether or not to obey the regulation.
For mohelim like Cohn, who have performed metzitzah b’peh regularly, the city’s regulation poses the quandary of remaining loyal to their religious beliefs in violation of the law, rather than choosing to violate their conscience.
Cohn said he had performed an estimated 35,000 circumcisions over 60 years, always practicing metzitzah b’peh, without deviation from what he said was the injunction found in Mishnah, Shabbat 19:2 of the Talmud. The passage roughly translates as: “We perform all necessary acts for the milah on Shabbat: We circumcise, tear the mucosal membrane [peri’ah], we suction….”
Cohn said he had never encountered a single infection as a mohel. He believed that the city’s attacks on the health risks of metzitzah b’peh were unproved and unjustified.
Cohn’s organization, the American Board of Ritual Circumcision, founded in 2004, lists contact information for 52 mohelim on its website. Most are from New York. But the listings also include mohelim in New Jersey, Pennsylvania, California, Ohio and Wisconsin.
In her ruling, Buchwald found that the plaintiffs were unlikely to prevail. She argued in her decision that mohelim were not being forced to directly provide the forms and therefore were not being compelled to convey speech that violated their religious views. “If a parent arrived with her infant on the day of the bris and did not have a consent form, [the law] would simply require that the mohel not perform MBP until the parent somehow procured a consent form, signed it and gave it to the mohel,” she wrote.
The DOHMH voted unanimously last September to approve the regulation requiring consent forms. But for three months the plaintiffs were able to delay its enforcement by filing for a preliminary injunction for a temporary stay of the rule, pending resolution of their suit against the city challenging its legality.
There were further delays in the court system, caused by Hurricane Sandy. The postponement in enforcing the regulation may have had repercussions; on January 7, a counsel for the city notified the court of another case in New York City of neonatal herpes infection following circumcision.
Buchwald finally denied the plaintiffs’ request on January 10. Their appeal of her ruling to the Second Circuit has been referred to a panel of judges for a decision.
“Certainly, we have placed our eggs in the legal basket, and frankly we think we have a strong legal case to be made, and we’re hopeful in the end we will prevail,” Zwiebel said.
Meanwhile, the DOHMH has mailed copies of the consent form and an informational brochure to 1,800 physicians and health care providers, — though professionals in these fields would rarely, if ever, practice metzitzah b’peh.
Most would only be exposed to the practice after caring for an infant infected with herpes.
The form is a simple one-page document that requests the full name of the mohel, the infant’s birth date and a printed name, signature and signed date from a parent, agreeing that he or she understands that metzitzah b’peh will be performed despite the DOHMH health advisory that this technique “exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”
Previous attempts to curtail the practice of metzitzah b’peh have been ineffective.
In 2005, after three infants were reported to have contracted neonatal herpes from a mohel, former New York City health commissioner Thomas Frieden publicly condemned the practice.
More recent DOHMH studies have revealed 12 area infants who have contracted herpes after circumcision. with two of the infants dying soon after.
In 2006, Antonia Novello, who was then New York State health commissioner, allowed metzitzah b’peh to continue under a safety protocol agreed upon with leaders in the Hasidic community. Novello suggested using antibiotic ointment on the wound, but critics in the medical community said the ointment’s effectiveness in preventing herpes transmission was minimal.
Last September, days before the department of health’s vote, 200 rabbis signed a petition against the regulation, saying that it was forbidden and an evil law.
New York City council member Lewis Fidler told the Forward at that time that the regulation was “probably next to impossible to enforce.” Fidler said: “Will you have undercover agents at a bris? In the end this will probably be a regulation flagrantly violated.”
Contacted after the regulation went into effect in January, Fidler reaffirmed his opposition to the DOHMH’s rule, saying that it was difficult for the secular world to comprehend, and have a fair perspective on the religious importance of the little-known practice.
Cohn said he was working with other mohelim to organize a “day of prayer” that would draw “millions of people” who believe “in the existence of God” to protest in front of Bloomberg’s office in City Hall.
“We’re working very hard, spending a fortune of money on this,” he said.
Niederman said he did not know of any planned protests and that official bodies involved in the lawsuit have never discussed such action.