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Don’t Fight Circumcision Law

A lawsuit against New York’s ‘oral suction’ law is misguided—and would backfire against the ultra-Orthodox

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(Photoillustration Tablet Magazine; original photo Shutterstock)

Last week, the New York City Board of Health voted unanimously to require written parental consent for a circumcision practice known as “direct oral suction” that segments of the Orthodox Jewish world believe is required under Jewish law. Prominent Orthodox Jewish organizations are up in arms, arguing that this is the first step toward greater government regulation of religious practices—a dangerous slippery slope that they fear could end in a total ban on circumcision. Some defenders of the practice, known as mezizah b’peh, say they will openly defy the new requirement to provide parents with information about the practice’s health risks.

The ultra-Orthodox umbrella group Agudath Israel of America, known simply as the Agudah, has even gone so far as to shop for pro bono counsel to bring a lawsuit challenging the law. Ironically, by staking this position Adugah has positioned itself on the same side of the informed-consent issue as Planned Parenthood, which has sued a number of states challenging laws that require doctors to obtain written consent about the increased risk of suicide for women who have abortions.

As an Orthodox Jew and a constitutional litigator with a history of successful suits against the city, I feel compelled to explain why the lawsuit is doomed to fail. What’s more, history shows that it will probably backfire. The more groups like Agudah oppose this law, the greater the likelihood for more government regulation of religious rituals in the future.


According to an email from Agudah’s general counsel, the group believes that written parental consent is unconstitutional on the grounds that it interferes with “both freedom of religion and freedom of speech.” The freedom of religion claim can be disposed of easily: The regulation does not, in any way, limit religious practice. A circumcision provider—and to be clear, the regulation applies across the board to anyone performing a circumcision, religious or secular, doctor or mohel—can continue to perform direct oral suction as he did the day before the regulation was passed.

The law only requires that, prior to the circumcision, the parent or legal guardian must give written informed consent “in a form approved or provided by the Department,” which must include notice that “direct oral suction exposes the infant to the risk of transmission of herpes simplex virus infection and other infectious diseases.” The issue, such as it is, is the form—and here’s why:

The First Amendment generally forbids “compelled speech”—that is, laws that require a person to speak against their will and in opposition to their sincerely held beliefs, whether religious or otherwise. In trying to prove that the consent form does this, Agudah’s case will undoubtedly focus on such seminal cases as Wooley v. Maynard, a 1977 Supreme Court case invalidating a law requiring residents of New Hampshire to display the state motto, “Live Free or Die,” on license plates because residents who were Jehovah’s Witnesses did not agree with that as a life philosophy. The group will also probably cite West Virginia Board of Education v. Barnette, a 1943 Supreme Court case that ruled that students who were Jehovah’s Witnesses could not be compelled to salute the flag and recite the Pledge of Allegiance in contravention of their religious beliefs.

Maynard and Barnette are important First Amendment cases. But they deal with laws that force a religious person to express an opinion or philosophy that is contrary to his religious beliefs. They say nothing about providing factual information regarding potential risks to the recipient of a medical procedure. That body of case law—less well-known, but much more on point (and, I suspect, missing from Agudah’s legal research)—makes clear that the government has broad authority to force those who perform medical procedures to provide such information, on the basis of the government’s fundamental responsibility to protect public safety and health.

Two federal circuit court of appeals decisions from this past year, Planned Parenthood v. Rounds and Texas Medical Providers v. Lakey, make this point in the context of a medical procedure even more charged than circumcision: abortion. These decisions come out of a recent trend in the state courts to require doctors to provide information to pregnant women about the health risks of an abortion, and in particular compel them to disclose studies showing a higher risk of suicide in women who have abortions. Planned Parenthood has vigorously challenged these informed-consent mandates in a number of jurisdictions on First Amendment grounds on behalf of doctors who argue that the state cannot compel them to speak to patients about such risks. Sound familiar?

Employing the framework laid out by the Supreme Court in its plurality opinion in Planned Parenthood v. Casey (1992), both recent federal circuit court decisions uphold the challenged legislation on the grounds that if the information the state requires to be made available is “truthful and not misleading,” and it is relevant to an informed decision as to whether to have the procedure done, the state can require that it be provided—whether regarding abortion or “any [other] medical procedure.”

These are not the only such decisions. Courts have upheld informed-consent laws against “compelled speech” claims in the context of state laws requiring disclosure of HIV status prior to intercourse, rejected “compelled speech” defenses in tort where communicable genital herpes was not disclosed, and have come out in favor of the state in a number of other abortion-related cases. As the court said in the HIV case, the state has an “overriding, legitimate and compelling interest in preserving the life of its citizens,” which gives it the authority to forbid “remaining silent and knowingly exposing others to an incurable disease.”

New York’s new regulations regarding direct oral suction fall squarely within this line of cases. There is no question that the risk to an 8-day-old baby of contracting a potentially fatal herpes infection from direct oral suction is “relevant” to a parent’s decision whether to have the circumcision performed in that manner. As long as the information provided is “truthful and not misleading,” the city is in the clear.

The notice published with the proposed law from the Board of Health suggests that it is already well aware of the legal basis for the regulation. It says that between 2004 and 2011, it learned of 11 cases of “laboratory-confirmed herpes simplex virus infection in male infants following circumcisions that were likely to have been associated with direct oral suction.” Two of these infants died, at least two others suffered brain damage, and, most important, “[t]he parents of some of these infants have said that they did not know before their child’s circumcision that direct oral suction would be performed.” In addition, it says that since 2004, the Department of Health “has received multiple complaints from parents whose children may not have been infected who were also not aware that direct oral suction was going to be performed as part of their sons’ circumcisions.” The informed-consent law responds directly to these legitimate concerns. Under no fair reading of the law has the Board of Health overstepped its powers under the First Amendment.


So, what of Agudah’s argument that this law is only the first step toward full government regulation of circumcision, or even, in the fashion of the recent ruling of a German court, banning the ritual? One thing’s for sure: If the Orthodox community continues to vehemently oppose this modest consent law it will encourage and likely lead to greater regulation of circumcision in the future. This is widely understood in the context of self-regulated industries. (Think baseball and steroids.) If a group or industry agrees to moderate self-policing and 30,000-foot government oversight, the government hangs back. But if they insist on complete autonomy, creating the impression that the industry thinks it is above the law, the government inevitably steps in and imposes more stringent regulation.

The same is true of religious groups. Just look at Mormons and polygamy. President Lincoln signed into law a ban on polygamy in 1862, but he signaled that he would not enforce the law for a time in deference to Mormons’ religious beliefs, hoping that they would put an end to the practice without government interference. But some prominent Mormons refused, insisting vociferously that their religious practices trumped the law. Some even rose up in civil disobedience.

It didn’t end well for them. In the years following Lincoln’s ban, the federal government stepped in to impose its authority and control by seizing church property and imposing criminal sanctions on polygamists. The church was nearly driven into the ground by the time it abandoned the doctrine of multiple wives in 1890.

Some in the ultra-Orthodox community have threatened to take a similarly hard line with the informed-consent law. Unfortunately, it’s only the latest in a series of incidents in which the impression given by some in the community is that they think they are above secular law. It’s an attitude that fails to acknowledge and appreciate the unique-in-history openness of American society to minority religions, and especially to Jews.

Moreover, vehement opposition to this modest regulation will turn popular opinion against religious Jews by creating the impression that we put tradition over the safety of babies, and that ritual matters to us more than life. And it will reinforce the mistaken impression in wider American society that opposition to direct oral suction and opposition to circumcision are one and the same, which they are not. England has had some modest form of regulation of religious circumcisions for a very long time, with no adverse consequences. Here in America, the government regulates marriage, even between religious individuals. I’ve never heard an Orthodox Jew complain about that.

If Agudah’s lawsuit goes forward, it will very likely make bad law for those who care deeply about the rights of religious minorities and the value of religious autonomy—as did the cases that came out of Mormons’ rejection of the regulation of marriage practices. The threatened circumcision case will make clear that the government has the authority to regulate and restrict religious practices when there is a risk to health and safety, giving greater credence and legal authority for those who would go further than a mere informed-consent law and forbid certain religious practices altogether—perhaps direct oral suction, or circumcision itself.


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Ronald Goldan, Ph.D. says:

Actually, a growing number of Jews conclude that circumcision is misguided because it causes unrecognized sexual and psychological harm. A recent study showed that circumcised men were 4.5 times more likely to use an erectile dysfunction drug than men with foreskins. Some Jewish men are dissatisfied that they are circumcised and feel anger, grief, or distress. Consequently, some Jews do not circumcise in North America, South America, Europe, and Israel.

    You are joking, of course. Circumcision on the 8th day is part of a 3,000+ year tradition. There were Jews in the Helenistic and Roman eras who were not circumcised, and some even underwent a painful and dangerous procedure to “reverse” circumcision. They didn’t stay Jews! Please source your statistics.

      Many evils are very old. The procedure to reverse the appearance and some of the ill-effects of circumcision is neither painful nor dangerous, and many thousands of men are now doing it – including a not insignificant number of Jews, who are staying Jews. (Read Lisa Braver Moss’s “The Measure of his Grief”.) Here are contact details for more than 80 celebrants of non-surgical Brit Shalom, more than 40 of them rabbis, one of the rabbis a professor of religious studies:

      Of course they did stay Jews. It takes more than a bunch of Rabbis making up new rules and then lying about them to give the illusion of them having “always applied” to turn somebody into a “non-Jew”.

      Fact is that the Jewish circumcision became corrupted only around the 2nd c. CE with the invention of the Periah (read Nissan Rubin’s “Brit Milah: A Study of Change in Custom”) by the rabbinical councils. Before this, all that was necessary was the vastly less destructive removal of the acroposthion (the protruding part). That was done by the father; no separate mohels existed back then, either.

      But even that it’s “required to enter the covenant” is an ahistoric falsehood. Contemporary historical scholarship has dated Genesis 17 (and its derivatives) to the Priestly Source, the *last* source of the Torah, written only during the 6th-5th c. BCE — some 13 centuries after Abraham’s purported lifetime.

      The original covenant is still present with Genesis 15, in which it is cut via animal sacrifice, and makes no mention of circumcision at all.

      Circumcision was most likely imported from the surrounding people sometime between the historical Moses (14th-13th c. BCE) and the 6th. c. Babylonian Exile, presumably for superstitions of fertility (as hinted at by the deity’s statements on Ishmael in Gen 17:20-25).

        Can you explain why circumcision is repeated so often in the bible, such as before the Paschal sacrifice in Egypt and before crossing the Jordan in Joshua? or why circumcision status is used as a metaphor, as in circumcised heart or Moses claiming to be unable to go to Pharoah because of “foreskinned”-lips (`aral-sfathayim in Hebrew)?

          Like I wrote, much of this (eg. Ex 12: 1-20, 28, 40-51) has been shown to be a subsequent insertion, redaction resp. embellishment of the Priestly Source, the one whose extent has been worked out the most in contemporary scholarship. The Book of Joshua too is a compilation, ie. its surviving not the original one nor more than a general outline of what happened (the historicity of the Exodus itself is abysmal), but in its case the division is not certain.

          Again, circumcision had been with the Israelites for quite a while already before P (the region itself had known it for millennia), but there are no hints that it was an obligation to circumcise infants, nor does the Torah specify the extent of the circumcision — that was only done for its present form in Shabbat 19:2, along with careful constructions to “prove” that this is how it was always done.

          The ritual probably began as requirement of purity resp. perfection to enter the priestly caste, as sacrifice to atone for a sin or to gain a blessing, ie. had been regarded with prestige before it became taken for granted as initiation into the tribe. As such, the use as metaphor was employed to express signs of immaturity, impotence, or unwillingness to follow the deity’s will.

          What about Moses complaining about “foreskinned”-lips, in Ex. 6:12? when God was about to kill Moses and Tzippora saved him by circumcising their son? Or do you just say that everything you don’t like in the Bible is “the priestly part” that can be simply ignored? For the record, the entire Documentary Hypothesis is still controversial, such as the work of Roger Whybray.

          If you can say that circumcision, which once you accept the Torah as unalterable law is as is as clear cut as can be, can be abrogated, what can’t you overturn?

          The evidence from linguistics, archeology and differing texts (the most famous being the Dead Sea Scrolls that partially date back to the ~4 c. BCE) has by now firmly established the essential tenet of the DH: The Pentateuch is not a unified work; Whybray did not object to this, either. What’s heavily contested is whether JEDP can still be uphold (probably not), ie. in what ways the composition & various redactions of the earlier parts resp. sources truly unfolded. Aside from isolated verses however the separateness of P is beyond doubt, as are yet later modifications. You’ll have to take it up with the relevant scholars if you don’t like these conclusions.

          Similarly, much of Ex. 6-7 is indeed a later insertion resp. alteration (see Propp, “Exodus 1-18″). For instance, 6:30 nearly replicates 6:12 as resumptive repetition to “cover” the inserted genealogy (probably copied from the Book of Records), 6:26 replicates the structure of Num 26:9, P has Aaron’s staff become serpent in 7:10, even though according to 4:17 it’s Moses’ staff that becomes a snake, in 7:13 the pharaoh’s heart is “strong” yet in 7:14 “heavy”.

          Again, you can just discount that, as the question here is not if the Israelites circumcised before P — they did, like many other peoples in the region much earlier — but when they started, to what extent, at what age, and when this turned into an obligation. As to the latter two parts, there is no compelling reason to think it was religiously mandated in infancy before P (rather than as rite of passage for adolescent boys, as requisite to marriage), as for the second, the Periah cannot be much older (as obligation) than the 2nd c. CE or otherwise the Talmud and Maccabees could not speak of men that had themselves “uncircumcised”, which is only possible if they had remnant foreskin, and as for the first, we might as well never get to know that.

    kweansmom says:

    Actually, your comment has nothing to do with the article, which is about the constitutionality of the informed consent law for metzitzah b’peh. You are just here to promote your intactivist agenda.

    Dr. Judi says:

    study showed that circumcised men were 4.5 times more likely to use an erectile
    dysfunction drug than men with foreskins? And if there is such a study, what
    does it prove? Possibly that circumcised men are more likely to get help for
    their erectile dysfunction.

I’m a bit confused. With Judaisms prohibition on even the appearance of drinking blood, how is this a “kosher” part of any bris?

    If the blood is never directly exposed to the air, there is no issue of “drinking” the blood. It would be like swallowing while there is bleeding inside one’s mouth.

sharinite says:

They’re outlawing blowjobs? What is NYCity coming to?

    Umish Katani says:

    a place with better hygiene practices and preventing diseases to children from a rabbis, mohels dirty mouth

This practice should be banned!

Michael Cohen says:

Demystifying circumcision. Some videos on circumcision I made here in Israel.

Two methods of oral suction:


Traditional brit milah ceremony:

People-on-the-street interviews: “Huna” “Rocio”

Although, I fully believe everyone should have the freedom to practice their religion, (as long as it does not hurt anyone or interfere with another person’s freedom), I do believe this archaic, unsanitary & potentially dangerous practice should be abolished. We live in the 21st Century. What may have been a religious custom in biblical times & during the age of Moses, may be quite inappropriate & provincial in these modern times. The necessity to follow a religious law to it’s fundamental word; may not be as crucial as ending a dangerous, antiquated practice that has absolutely no discernable relevance.

As a traditionalist Jew (more Orthodox leaning), I do agree with the author. I have two sons, now adults and three grandsons and the Brt Milah was performed without direct oral suction. I find this particular tradition a bit scary because of the hygiene issue. The Mohels used a a suction tube so there was no direct direct oral contact to the child. I believe this latter strategy is proper and no way diminishes our 4000 year tradition.

I just read Dr. Goldan’s reply and he references a recent study….please provide your citation.

wishnitz says:

In his last paragraph, the author, unconsciously, divulges why the Orthodox public is in uproar. He writes; “….will make clear that the government has the authority to regulate and restrict religious practices when there is a risk to health and safety”. Restrict? this is a straight path to the banning of circumcision or telling the public how to do it, both of which would irreperably harm a large section of the public and infringe on their religious rights.
The author also mentions eleven cases in the period between 2004 and 2011. That is a span of seven years, when there surely were tens of thousands of circumcisions, ( I heard a figure of 176,000) many of which used the above-mentioned practice. This is statistically minute and insiginificant. There is even some question whether the reported cases had anything to do with the actual practice. Putting all this together, I predict that the courts will throw out the ordinance as a restriction on the the religious rights of the public.

    libbycone says:

    It is not “statistically minute and insignificant” if it’s your kid who is dead or irreparably harmed. I don’t have the morbidity and mortality rates of circ without oral suction at my fingertips, but it wouldn’t surprise me if this doubles the rate. People sue pharmaceutical companies all the time for far less.

      kweansmom says:

      The CDC found the rate of infection among kids who had MBP to be 3.4 times that of the general population.

        wishnitz says:

        Eleven children infected from tens of thousands… do you get 3.4 percent from 11 cases?

          kweansmom says:

          Re-read what I said, I never said 3.4%. And read the CDC report if you want to have an intelligent discussion about MBP and medical risk.

          wishnitz says:

          I have downloaded the report for further reading. However, the fact that the risk is one in four thousand attests to the absolute rarity of the infection. I am convinced that the majority of orthodox jews who agree of that practice will accept these odds. Let me also add that any parent who does not agree to this practice can tell the mohel and he will refrain from doing it.

          kweansmom says:

          In the CDC study, two sets of parents (out of 9) whose kids contracted herpes said they did not know that MBP would be performed. The DOH also states that they have received complaints from other parents saying that a mohel performed MBP without their consent and knowledge. This law will help to assure that only parents who truly want the procedure will have it done.

      wishnitz says:

      have you or your loved ones ever had an operation? have you ever been to the dentist? do you know that people die from a tooh extraction? do you know that people die from minor surgery? your comments are ridiculous. Of course, if- g-d forbid- it is your child ,it is a tragedy. This doesn’t make it an epidemic. And your comment about suing pharmaceutical companies betray your philosophy…These suits are mostly made by greedy lawyers.People die when crossing the street. Should we stop crossing the street?

        kweansmom says:

        Which is why your doctor or dentist has you sign an informed consent form before doing any procedure involving risk.

        libbycone says:

        When you cross the street, do you look both ways, or do you do it with your eyes closed? When you have surgery, do you pick a doctor who is experienced and has a good track record, or someone you find in the phone book? Have you heard of any doctor who does not obtain informed consent before operating on a patient?

        Do you think people should do nothing UNTIL there is a herpes epidemic?

      rocky2345 says:

      Even if the practice is banned, it will continue in secret. The Haredi answer to a higher authority. They are not concerned with scientific evidence or statistics.

    kweansmom says:

    No human life is “minute and insignificant”.

      wishnitz says:

      Life has many risks. you can die from inhaling a chicken bone. Stop eating chickens.

        kweansmom says:

        We all take calculated risks in life. The CDC estimates that the risk of transmission of herpes via MBP is around 1 in 4000. The government is saying that if you think that risk is worthwhile for your own son, relative to what you feel is the benefit of MBP, that’s your right, but it should be an informed choice.

        For your parallel to be accurate, you should say “Stop force-feeding chicken to babies.”

    Are you saying that since the state has no compelling interest in questionable loss of sexual function that it has no compelling interest in brain damage or death?

      wishnitz says:

      I have no idea what your comment means. The state has an interest in unjustified violence, hence the law against crime. In modern days, the government has taken sone interest in trying to eradicate some illnesses and has invested in research. Beyond that, I don ‘t see any reason for interfering in people’s lives.

kweansmom says:

Thank you for a well-researched and articulate analysis of the legal and historical precedents of this issue.

Debates about the state’s authority to regulate metzitzah b’peh have been around for 150 years. To put the issue in historic context, read Robin Judd’s “Contested Rituals: Circumcision, Kosher Butchering, and
Jewish Political Life in Germany, 1843-1933″ Ithaca, NY: Cornell University Press; 2007.

michaelroloff says:

I have become engaged in the German circumcision controversy and have
the continuously updated archive for that at

Two especially interesting contributions to the debate are from Professor Michael Wolffsohn who maintains that circumcision is not what makes a Jew a Jew, birth by a Jewish mother is, or conversion and that the practice has been controversial for thousands of years. It is the “foreskin of the heart” that matters according to him


I tend to think what Ron Low in the above post proposes will be the ultimate German compromise solution.

goatlady says:

I have never seen this technique performed and have been at many a bris. Do all Orthodox Jews use this technique or only certain sects?

Michael Cohen says:

THERE IS NO “BLOOD DRINKING!” See this video which shows what happens during and AFTER the mezizah b’peh – as well as the entire ceremony:
Traditional brit milah ceremony:

Umish Katani says:

They can use a rubber bulb and suction to accomplish the same thing…. Gross practice

Is there any relevance to the 19th century halachic discourse about mtzitza bfe? The requirement has been questioned by none other than the Chasam Sofer, one of the preeminent authorities of the early 19th century. The case Agudah is trying to bring would be like raising a case involving a public school requiring attendance during Chol Hamoed as though the school was requiring attendance on Yom Tov.

marian s says:

The Board of Health should require consent 30 days before the circumcision. As a veteran of 5 caesarian deliveries, I don’t think it’s fair to assume that a new mother who wants to protect her baby from the risk, particularly one who is on pain medication after a caesarian surgery, has the strength early in her recovery to stand up to the mohels.

    rocky2345 says:

    You do realize that circumcision takes places on the male baby’s 8th day of life, unless the baby is sick and is considered too weak to withstand the procedure. Haredi mothers are not “liberated” women like the Barbra Streisand character in “Yentl”.

CircEsAdreim says:

Time to ban ALL forms of non-therapeutic infant circumcision. It’s a practice that has no place in a society that is supposed to care about human rights.

rocky2345 says:

The religious will continue this ritual whether it is legal or illegal. Fortunately, it harms only a few male children and kills even fewer.

I am more concerned about the thousands of Haredi children in the US and Israel who leave school with very poor secular educations and are not prepared to compete for the high paying jobs available in the modern world. I recently read that 25% of Israel’s Jewish grade 1 class this year is Haredi. The Haredi population is growing much faster than the rest of the Jewish population. Who will pay the welfare bills when these children start raising their own children in less than two decades? Who will do the fighting in the IDF?

Not Important says:

The main claim against MBP is not whether or not it causes genital herpes, it seems clear that it does, but that the rates of infection are so low, that it does not merit government intervention. If the government intervenes regarding MBP, then the government should also intervene and require informed consent for all mothers who kiss their children, as the danger is equal. The government should also require informed consent for all those who use electric kettles, for those who take their children skiing or any other activity which contains the slightest trace of danger. The fact that the government chooses to focus on one particular activity to the exclusion of all other activities cannot but be construed as an illegitimate limitation of that particular activity, hence its characterisation as limitation of the freedom of religion.


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Don’t Fight Circumcision Law

A lawsuit against New York’s ‘oral suction’ law is misguided—and would backfire against the ultra-Orthodox