Friday, January 11, 2013
In a 93 page Memorandum and Order in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene, Judge Naomi Reice Buchwald has denied a preliminary injunction against NYC's regulation requiring notice and consent for a specific circumcision practice known as MBP, involving oral suction of the wound. We previously discussed the regulation and the complaint.
Much of Judge Buchwald's opinion is devoted to the empirical basis supporting the NYC regulation. As she states, there is a "strong scientific consensus that direct oral suction puts infants at a serious risk of HSV-1 infection," yet there is some dispute whether such has actually occured during a Jewish ritual. Given this dispute, Judge Buchwald ultimately sidelines the scientific studies and focuses on the legal standards.
On the speech claim, Judge Buchwald concludes that "the interpretation of section 181.21 begins and ends with the regulation’s text. The text of section 181.21 does not compel speech, thus plaintiffs are unlikely to prevail on their claim that the regulation violates" the Free Speech Clause.
On the free exercise claim, Judge Buchwald distinguished 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 in which the Court applied strict scrutiny. The judge concluded that the NYC regulation has "several valid secular objects" and "there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular." Instead, the judge noted that the Department had been involved in extensive education outreach since 2005 to combat the risk of HSV-1 transmission: "Viewed in the context of this educational outreach, the present regulation appears to be one component of a long-term, multifaceted strategy to reduce the incidence of neonatal herpes and promote informed parental decisionmaking," rather than any targeted hostility to a particular religious practice.
In an interesting construction, Judge Buchwald reframed the free exercise rights of the plaintiffs:
[the] mohels’ free exercise interest is inherently circumscribed by parents’ right to decide whether MBP is performed on their child or not. When mohels’ free exercise interest is framed thusly, one can see how limited the regulation really is: it ensures that a prerequisite to a mohel’s legitimate performance of MBP is in fact met. In light of these considerations, it is clear that the regulation is rationally related to the government’s interest in fostering informed parental decisionmaking.
Thus, the judge terminated her previous stay of the enforcement of the regulation.