Friday, October 12, 2012
The complaint filed in the Southern District of New York federal court in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene challenges the constitutionality of a recently passed regulation regulating circumcision on the basis of the First Amendment. This is a much more narrow regulation that the San Francisco proposal to ban all male circumcision.
The NYC regulation, §181.21, goes into effect October 21 and amends the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision:
A person may not perform a circumcision that involves direct oral suction on an infant under one year of age, without obtaining, prior to the circumcision, the written signed and dated consent of a parent or legal guardian of the infant being circumcised using a form provided by the Department or a form which shall be labeled “Consent to perform oral suction during circumcision,” and which at a minimum shall include the infant’s date of birth, the full printed name of the infant’s parent(s), the name of the individual performing the circumcision and the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”
The complaint's first count contends that the city may not compel speech absent a satisfaction of strict scrutiny, and that the section requires the person performing the circumcision - - - the mohelim in Orthodox Jewish tradition - - - to disseminate advice that he would not otherwise give, with which he disagrees, and that is a "value-based opinion" rather than a fact. Interestingly, this is similar to the arguments against abortion consent procedures and warnings, although the complaint also notes that the mohelim are not commercial or professional actors.
The second - - - and perhaps more predictable count - - - sounds under the First Amendment's free exercise clause (and a subsequent count invokes the New York Constitution's similar clause). The complaint alleges that the regulation was
designed to target the “practice known as metzitzah b’peh,” and the Department’s deputy commissioner for disease control described the regulation as an effort to “regulat[e] how part of a religious procedure is done”
This "targeting," of course, would mean the law would be subject to strict scrutiny under Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion. The ordinance of City of Hialeah had exemptions for other types of slaughter, a problem not only as to the "targeting" inquiry, but also as to the application of strict scrutiny.