Bris Amendment Sparks Outcry

By Debbie Maimon – Yated

With the New York City Board Of Heath poised to adopt a health code amendment that would subject bris milah to government regulation, rabbinic authorities in the United States, Israel, Canada, Belgium, Britain and Australia have united in condemning government intrusion into Jewish observance.
Slated to be adopted September 13, the new law empowers government officials, for the first time in U.S. history, to dictate how certain aspects of bris milah are performed.

The amendment is viewed as setting a dangerous precedent that threatens bris milah everywhere. If, in spite of New York City’s vibrant Jewish presence and strong political will, the amendment still prevails, one can expect circumcision foes to mount campaigns against bris milah just about anywhere.

Restrictions on circumcision are already in force in some parts of Germany, Sweden, Norway and Switzerland, and rabid opponents of the practice tried to institute a ban against it San Francisco.

The law about be adopted by the N.Y. City Board Of Health prohibits the time-honored practice of metzitzah b’peh, [oral suction by a mohel during bris milah] unless the parents sign an “informed consent” document. The same law obligates the mohel to educate the parents about the so-called dangers of mbp.

The document, whose exact language has yet to be crafted by DOH officials, will contain the parents’ affirmation that they have been alerted to the heightened risk of mbp causing HSV-1 (herpes) that could lead to death, brain damage or other illnesses.

In essence, the law coerces an admission from the parents that they have knowingly endangered their baby’s welfare–a self-incriminating statement that could be leveled against them at a later time.

ISSUE UNITES ORTHODOX WORLD

The issue has generated heated opposition from all streams in the Orthodox world, reaching far beyond the borders of this country.

Torah authorities on five continents have issued kol korehs, or public notices, exposing the New York City ordinance as an insidious attack on bris milah masquerading as a concern over public safety.
The kol korehs bearing the signatures of revered gedolei hador and scores of rabbonim from the United States, Israel, Canada, London, Belgium and Australia, reflect an unprecedented solidarity among Torah world’s premier leadership. The notices proclaim that the right to practice bris milah without government interference must not be compromised.

Distributed in all quarters of the Torah community, the kol korehs, representing a broad spectrum of Chasidic and Litvish communities, inform constituents that the proposed amendment collides with Torah law and is based on falsehood.
The authors prohibit compliance with any ordinance that seeks to change the practice of bris milah in the slightest way.

They call on all New York Jewish residents “to rally to the defense of our faith, and to vigorously resist all attempts to infringe on our religious practices.”

Mindful of the lessons of history, Torah leaders see in the DOH proposal for “informed consent” a dangerous harbinger of further restrictions and regulations to come.

Suppose “informed consent” is adopted but fails to limit the practice of mbp? Will the next step be an amendment to ban it entirely, as Mayor Bloomberg has made it clear he would like to do? What next? Increased government regulation over where, when and by whom bris milah can be performed–eventually targeting the mitzvah itself for elimination?

‘TOXIC COMBINATION OF BAD MEDICINE AND ILL WILL’

The kol korehs denounce the “toxic combination of bad medicine and ill will” that have fueled the Health Department’s crusade against mbp. They cite the centuries-old record of safety surrounding the practice of mbp, and the lack of credible evidence linking it to even a single instance of herpes infection in a newborn.

“It is axiomatic to every believing Jew that following the will of the Almighty cannot possibly bring one to harm,” asserted the letter issued by the Badatz [Eidah Chareidis Of Yerushalayim].

The letters quote chazal in Masechta Shabbos with regard to mitzvos such as circumcision and the prohibition against idolatry that have at various times in history been outlawed, but have miraculously survived all forms of religious persecution.

“Any mitzvah for whose sake Jews have submitted to the death penalty such as milah and [the prohibition against] avodah zorah, has been anchored in Jewish observance to the present day,” chazal attest.

“With bris milah under attack in multiple regions of the world, we must demonstrate an even greater loyalty to this sacred mitzvah,” the rabbonim of the Crown Heights Beis Din declared in a powerful letter.

“Our ancestors were ready to lay down their lives and suffer terrible tortures for bris milah. In the same spirit of self-sacrifice, we refuse to surrender to sinister schemes and intimidation.”

“We have to do everything we can . . . to thwart what the government is doing,” urged Rav Yisroel Belsky, rosh yeshiva of Torah Vadaas.

“Under no circumstances should parents or mohelim make any declaration or sign any document [about informed consent], wrote Rav Ahron Teitlebaum, the Satmar Rebbe. “These require us to slander and compromise a sacred custom handed down to us from one generation to the next.”
“As we stand before Hashem on the holy days approaching us, let us plead before the Baal Harachamim to nullify all malicious schemes against us. Let us remember that the greatness of the mitzvah of milah…will save those who honor it from illness and catastrophe. And in that merit, may we be zoche to be written down and sealed for a kesiva vachasima tova.”

CONSTITUTIONAL FREEDOMS AT STAKE

Opponents of the amendment have warned that it violates the bedrock constitutional rights to freedom of religion and freedom of speech. If adopted, they say, the ordinance will trigger a fierce court battle over its legality.

“The proposal is not just bad public policy,” wrote Jones Day attorneys Shay Dvoretzky and Yaakov Roth in a letter to the Department of Health on behalf of the International Bris Association. “It would interject the government into venerable religious ritual that boasts an incredible safety record.”
The Jones Day memo also blasted the city for seeking to force mohelim to say something they fiercely dispute. That is a direct violation of the right of Freedom of Speech, the brief said.

The law that protects one’s right to speak freely also protects him from being forced to utter something against his will. To compel a mohel to participate in “a misguided effort to spread undue fear about metzitzah b’peh” is clearly illegal, the letter argued.

HEALTH REPORT RIDDLED WITH FLAWED DATA

The cogent legal challenges have had little impact on the DOH crusade against mbp. Neither have revelations that a health report cited by the Department to justify its assault on the ritual is riddled with flawed and misleading data.

Far from proving DOH assertions about mbp, “the data prove nothing at all,” said Dr. Dan Berman, chief of infectious diseases at New York-Westchester Square Hospital in the Bronx. “There simply is no evidence at all linking ritual circumcision with herpes,” Dr. Berman told Yated.

As an example of the incompetence that characterizes the DOH report, Berman pointed to its conclusions that a baby’s death from a herpes infection was likely caused by mbp, although no evidence was cited that the practice was even performed. At the same time, a much more likely source of infection was identified, but ignored.

“The report overlooks a much more obvious cause of herpes infection in newborns–direct contact with a family member with an open and infectious herpes cold sore,” noted Dr. Berman.

“This direct contact, reported by the mother of the baby, was noted in the medical records. Yet it was not factored into the study by the authors of the report? Why not?” This serious omission (among many others), and the report’s unreliable data render it of dubious value, he said.

“When you have a clear family history of a herpes risk factor in front of you, no one should question for a split second where the newborn’s herpes infection came. Logically no one should be scratching their head, wondering if the baby picked up an infection from the mohel. It makes no sense.”

DOH ON COLLISION COURSE WITH THE PUBLIC GOOD

While claims of serious health hazards attributable to mbp lack credible evidence, they are nevertheless being promoted by the Department of Health as absolute truth. The net effect of the obsession with mbp to the exclusion of all other factors contributing to HSV-1 has been an erosion of community trust.

In a letter to the DOH, Agudath Israel said the amendment, if adopted, would poison Jewish community relations with the DOH, destroying trust and undermining good will.
“It would foster the perception in the community that the DOH is heavy-handed, set on direct confrontation and not interested in working with the community,” the letter said.
As the Department plays deaf to mounting criticism of its tactics and plows ahead with its agenda for September 13, the conviction has indeed spread that a political agenda and/or religious bias is driving the anti-metzitzah campaign.

The sense that the DOH is sacrificing genuine public health issues on the altar of this campaign has sparked calls for an investigation. People want to know why policymakers in the Department have put it on a collision course with common sense, the public good and the cherished religious freedoms of a sizable segment of the population.

THE HERPES CASE THAT WASN’T

A new case that was recently brought to the attention of Yated highlights the Department of Health’s rigid preoccupation with mbp–even in the absence of any finding of a herpes infection.
It also drives home the distrust of the DOH that harassment by health officials have sowed in the Orthodox community.

In an interview with Yated, Mr. H. discussed his odyssey in the hospital with his 10-day old son, whom he and his wife brought to the Emergency Room at Maimonides after noticing pimples on the baby’s knees. The baby had been circumcised two days earlier.

Mrs. H. had noticed a pimple or blister on the baby’s knee before the bris. The rash then spread to both knees after the bris. The newborn had no fever and seemed to feeling fine, but his parents wanted to be on the safe side.

“It was erev Shabbos, a half hour before litchtsen,” recalled Mr. H. “We couldn’t get through to our pediatrician, so we brought the baby to the ER. There they immediately did blood tests and a spinal tap. Even before getting the results, they started the baby on acyclovir, the treatment for herpes. But none of the tests came back positive, and by 8:00 the next morning, the rash had disappeared.”
A day later, the nurses removed all the monitors to which the baby had been hooked up. They told the parents they would discharge him as soon as the Infectious Diseases doctor made his examination.

Later that day, however, after the examination found no sign of infection, the parents were told that since the IV treatment for herpes had been started, they would have to keep the baby in the hospital for the full treatment. That would take 14 days.

Since herpes had initially been suspected, and since one of the baby’s cultures had been “inconclusive” due to being “lost or misplaced,” the case was being treated as if it were in fact a herpes infection, Mr. H. was told.
After two weeks in the hospital, the baby was sent home with instructions to keep him on medication for six months, just as a precaution. End of saga? Not quite.

With their newborn labeled a “herpes case,” the DOH was immediately notified. Mr. H. recalled being questioned in the hospital by Dr. Kate Washburn, one of the authors of the aforementioned Health Report, whose flawed medical data, critics say, is being used to whip up an assault on mbp.
Washburn began with general questions about the baby’s birth and delivery, the number of siblings in the family, and whether anyone in the family had herpes. She quickly zeroed in the bris: Where was it? When? Who performed it?

“I was surprised at the questions,” said Mr. H., “because there was no laboratory confirmation of herpes. So what was all the commotion about, I asked her.”

“’It’s part of a study we’re doing on metzitzah b’peh,’ she told me.”
“But the baby never had herpes, so what’s the purpose of all these questions?” Mr. H. asked.

“I know the test results were not positive,” Washburn said. “But since the hospital is treating him with acyclovir as a precaution, we’re looking at this as herpes case.” [In other words, to bolster our attack on mbp, we need more cases of herpes where mbp is a factor, so we’re going to count this as a herpes case even though it isn’t.]

Instead of simply responding to questions, Mr. H. countered with a few of his own.

“How many circumcisions do you see a year?” he asked Washburn.

“Between 3-4 thousand.”
“And how many of these come down with herpes?”

“Very few.”
“If there are so few, why the big fuss?”

“Because even one is too many,” Washburn replied.

“Do you see herpes cases among non-Jews?”

“Yes, we do.”
“What could be causing those infections, if mbp is not a factor? “

“Infections are passed through body fluids. A mother with a newborn might have picked up the virus from a toilet seat and failed to wash her hands and accidentally transmitted it…There are various ways it could happen.”

“So if our baby’s case is being treated as herpes (even though it isn’t), why are these possibilities not being looked into in his case?”

“Because for this particular survey, we are studying the role of mbp in causing HSV-1.”
[Perhaps there are other “surveys” being conducted by the DOH that are studying the role of toilet seats… or diapers or other objects where body fluids may have left dangerous germs?

What about a survey studying the role of active herpes sores on the mouths of family members? Wouldn’t studies of this sort be more useful than those targeting a practice that boasts an extraordinary safety record over many generations –long before people knew of the existence of germs and viruses? ]

HOUNDED BY HEALTH OFFICIALS

Mr. H. reports that the calls from the Department of Health continued after the baby was released. Dr. Washburn phoned several times, leaving messages about wanting to ask a few questions, “just to make sure she had the correct information.”

Then, the midwife who had assisted Mrs. H. during the delivery called with the disquieting news that she, too, had been contacted by the DOH. Her records about their baby’s birth were being requested, and she was legally required to turn them over.

Mr. H. understood he was being harassed and decided he needed a lawyer. He contacted Mr. Yerachmiel Simins, who advised him he was within his rights to refuse to answer questions about religious practices, unless they had an obvious bearing on his baby’s medical condition or treatment.

Dr. Washburn called again a few days later, with “just a few follow up questions.”

“I’m sorry, I’m not comfortable with the questions,” Mr. H. told her. Please call my lawyer. I can give you his number.”

The response seemed to stun Washburn. “But–Why did you change your mind?” she fumbled. “You had no problem when we talked in the hospital. You were going to give me the name of the mohel–”

“I answered the questions I was able to answer,” Mr. H. explained. “Now I think it’s best for you to talk to my lawyer.”

According to Mr. H. and Mr. Simins, there have been no further calls from the Health Department.