Too much religious freedom? Infants infected with herpes after Jewish mohel applies oral suction to circumcised penises.

• Jurisdiction: United States
• Date: 22 June 2004
• Author: Kerlee, Jamie Cole
• Published date: 22 June 2004
• Author: Kerlee, Jamie Cole

1. INTRODUCTION II. METZITZAH BE' PEH: THE ANCIENT ORTHODOX JEWISH RITUAL III. THE HERFES SIMPLEX VIRUS: A SCIENTIFIC GLANCE AT THE POOR PROGNOSIS IV. METZITZAH BE' PEH GREATLY INCREASES THE RISK OF NEONATAL HSV TRANSMISSION V. THE FREE EXERCISE CLAUSE: THE JUDICIAL FORK IN THE ROAD A. Metzitzah be' peh: Following the Supreme Court's Path from Hialeah B. Oregon Employment: Paving the Way for laws Affecting Religion C. Hialeah: The Supreme Court Takes a Different Direction VI. THE MODERN TREND: GOVERNMENT REGULATION AFFECTING RELIGIOUS RIGHTS A. Gradual Abandonment of Religious Shield laws Protecting Parents from Criminal liability B. Federal Prohibition of Female Genital Circumcision: A Model for New York VII. CONCLUSION I. INTRODUCTION

   In October of 2004, New York City officials temporarily enjoined a particular mohel (1) from directly applying oral suction to babies' penises, an ultra Orthodox Jewish circumcision ritual known as metzitzah be' peh. Three infants circumcised by the mohel were infected with the Herpes Simplex Virus (HSV). (2) Metzitzah be' peh is an ancient Orthodox ritual procedure used to stop the bleeding following an infant's circumcision. (3) In November of 2004, one of a set of twin infants died from complications due to the HSV infection. (4) In 2003, another infant had been diagnosed with herpes following a ritual circumcision by the same mohel. (5) And in December of 2005, the New York City health department revealed that two more infants were infected with HSV following oral suction rituals. The City's statement did not indicate whether it was the same mohel from the earlier three infections. (6) Of the two newly released cases, one of the infants suffered permanent brain damage. (7)

   Following the tragic death of this infant and the permanent lifelong infection of the others, New York City officials began to question one mohel's HSV status. (8) Some Orthodox mohels within the Jewish community still perform the ritual which is loosely referred to as oral-suction. (9) During an inconclusive month-long investigative process in 2005, the New York City health department temporarily enjoined the mohel suspected of transmitting herpes to the infants during metzitzah be' peh. (10) Compelled by the possibility that the potentially HSV infected mohel's continued oral contact with infants' circumcised genitalia could result in the fatal transmission of HSV to more babies, a New York court temporarily ordered the mohel to cease and desist from performing metzitzah be' peh on anymore infants. (11)

   The state action of enjoining the mohel from practicing the ancient ritual and mandating medical testing bred vicious First Amendment based attacks against New York officials. (12) The mohel's attorney and other advocates adamantly argued that denying or interfering with anyone's right to exercise metzitzah be' peh, a religious ritual, directly violates the United States Constitution. (13) After several months of investigation, blood work, medical exams, and splintered political and religious debates both within and outside of the Jewish community, the county, the state and the city moved to dismiss all outstanding court orders and its pending civil lawsuit.

   The underlying issue in the New York mohel's case has yet to be resolved. The infected infants are not the first instances to prompt questions regarding health and safety concerns surrounding metzitzah be' peh. (14) The city-wide statement issued by the health department in December 2005 acknowledged other instances of infants becoming infected with HSV in connection with metzitzah be' peh. (15) In particular, the statement cites to the recently released medical study confirming the high risk of HSV associated with oral-genital suction. (16) Thus, until mohels cease to apply direct mouth to penis contact during the ritual, this highly disturbing and controversial issue will remain unresolved and continue to generate heated debate.

   The Free Exercise Clause of the United States Constitution's First Amendment protects the free exercise of religion, and the United States Supreme Court has included within the clause's scope the repugnant practice of animal sacrifice. (17) As such, cities cannot even ban the distasteful religious practice of slaughtering innocent animals when it is part of a religious sacrament. (18) On the other hand, Congress has enacted a federal statute banning female circumcision, a heinous procedure performed by certain cultural and religious groups. (19) And some states are beginning to eliminate religious shield laws which have had the effect of insulating parents from criminal abuse and neglect prosecution when denial of medical treatment for their children is grounded within their religious beliefs. (20)

   In the future, individual cities or states should combat the significant health risk posed to infants by metzitzah be' peh by enacting affirmative statutes similar to the Federal Prohibition of Female Genital Mutilation Act of 1996. It should be expected that parents may desire to bring tort claims against infected mohels who permanently injure or kill their children by negligently or intentionally performing oral suction despite HSV status. (21) Does the Constitution absolutely protect the free exercise of oral-genital suction when it threatens the health and safety of human beings, particularly infants? And does the Constitution bar parents from having any remedy for the lifelong physical, emotional, and financial damage that may potentially result from the negligent HSV transmission through metzitzah be' peh?

   This article focuses on the controversial issue of state interference with the Orthodox Jewish practice, a topic recently at the forefront in New York City. Until the government recognizes its duty to provide affirmative regulation of metzitzah be' peh to protect the compelling health interest of infants, thousands of infants will continue to be at risk of contracting potentially fatal neonatal HSV without any available remedy or criminal liability. In section II, the history and religious significance of metzitzah be' peh is summarized for a better understanding of the strong religious beliefs protected by the Free Exercise Clause. Section III identifies the damaging and permanent nature of HSV by illustrating the range of symptoms, detrimental effects, and virulence of the virus. Section IV offers a short discussion of the relatively recent medical studies which conclusively correlate a high risk of HSV infection with metzitzah be' peh, evidence of New York City's compelling interest to affirmatively regulate or ban the religious ritual of oral-genital suction.

   Next, section V explores the present state of the case law surrounding the First Amendment's Free Exercise Clause. This section addresses the analogous judicial fork in the road where the current issue has been temporarily left to idle based on two very different directions taken in the most recent Free Exercise cases from the United States Supreme Court. Section VI discusses how the modern trend of governmental regulations intersecting with religious freedom offers insight to support necessary government regulation of metzitzah be' peh. In conclusion, section VII explores the city's proposed solution and the solution's ineffectiveness and inability to protect infants from the incurable and potentially fatal herpes virus.

2. METZITZAH BE' PEH: THE ANCIENT ORTHODOX JEWISH RITUAL

   Berit milah is a traditional Jewish circumcision ritual. (22) The ritual is symbolic of a covenant with God. (23) Circumcision itself is a prehistoric procedure, one of the oldest operations on record performed by man that was only later adopted for medical purposes. (24) After circumcising himself, the biblical Abraham then performed the procedure on all of the males in his household, his sons Ishmael and Isaac, and his slaves. (25) The Encyclopaedia Judaica references Genesis 17:11-12 as the originating source of the ritual; the section reads: "Every male among you shall be circumcised. And ye shall be circumcised in the flesh of your foreskin, and it shall be a token of a covenant betwixt Me and you. And he that is eight days old shall be circumcised among you, every male throughout your generations." (26) Failure to observe the command is believed to result in the punishment of being "cut off" from one' s kind. (27)

   Reformed Jewish believers (non-orthodox) may still have their sons circumcised, but the procedure is typically done by a surgeon in a hospital, sometimes with a Rabbi present to say the appropriate prayers to complete the ritual, or for some without a Rabbi or ceremony at all. (28) The more traditional orthodox bris takes place in the home, hospital, or synagogue, and is performed by mohelim, rabbis specially trained in aseptic techniques, the circumcision procedure, and who have received rabbinical recognition. (29) There are a number of specific rules that relate to the timing of the circumcision for healthy babies, babies born via cesarean section, infants without foreskins, etc., and the elaborate rules demonstrate the importance and depth of the rooted tradition. (30)

   Circumcision is not a procedure limited to the Jewish culture. (31) In fact, parents of children in American hospitals are presented with the option of circumcising their sons or not. (32) The common medical procedure has no religious basis and is performed by doctors with the assistance of anesthesia, acetaminophen, and sterile medical equipment. However, circumcision is not viewed by the majority of Jewish believers as a medical procedure. (33) Berit milah has an established ancient religious foundation and is intended to perpetuate the bond between God and the Jews. (34) In addition to the bris, some Orthodox Jews still perform metzitzah be' peh, commonly described as "oral-genital suction," as a means to stop the bleeding of a circumcised infant' s penis. (35)

   The ritual Berit milah has...