The New York Personal Injury Blog

Orthodox Jews Sue to Block Restriction on Orally Assisted Circumcision

The City's Department of Health voted last month to require informed consent from parents before a religious ritual was performed on their children. Normally, a government restricting religious practices is something we can all disagree with in unison. However, what if that ritual has allegedly led to the infection of eleven babies with herpes since 2000, killing two of them?

Back in March, the Brooklyn D.A. was looking into the most recent case of a baby dying from herpes contracted as a result of orally assisted circumcision. Though it seems no charges came from the case, it did renew calls for a governmental regulation. The Orthodox Jewish practice involves circumcision, followed by removal of the blood from the wound with the rabbi's mouth. The practice, known as metzizah b'peh, continues to be widespread in Orthodox communities in New York, despite the occasional herpes case.

On Thursday, leaders in the community filed a request for an injunction to block the informed consent measure, reports The New York Times. The regulation requires rabbis to obtain written consent on a form that warns of the possibility of transmission of herpes and other communicable diseases, which can lead to brain damage and death. The form also states that the Department of Heath advises against the procedure.

Restrictions on religious practices are always a tricky matter, legally speaking. Obviously, the First Amendment protects the right to practice one’s religion freely. However, as with all rights, there are exceptions. In 1944, the Supreme Court stated, “The right to practice religion freely does not include the right to expose … the child to communicable disease or … to ill-health or death.” That case simply involved using children to distribute religious literature. There was no herpes involved.

In order to restrict a religious practice, the city is going to have to show a compelling, extremely-important state interest that must be protected, such as preventing the transmission of herpes to newborn infant males.

They will also have to show that the restriction is as narrowly tailored as possible in order to achieve the goal, such as the requirement to obtain written consent. The city’s regulation does not ban the practice, nor does it require regular STD testing or hospital supervision. It simply requires a signature on a form that discloses the potential risks and provides expert advice on the matter. As such, one would imagine that such a restriction may well be reasonable and therefore allowable under the Constitution.

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