Federal appeals court calls for review of NYC metzitzah b’peh law

Talia Lavin

NEW YORK (JTA) — A New York City health law designed to regulate the controversial metzitzah b’peh ritual circumcision practice must pass stricter scrutiny, a federal appeals court ruled.

The Second Circuit Court of Appeals in Manhattan on Friday said a lower court ruling in January 2013 did not apply a rigid enough constitutional standard in permitting the city to proceed with consent forms that parents would be required to sign for circumcisers to use oral suction during the procedure.

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During the rite, the circumciser uses his mouth to draw blood from a just-circumcised baby’s penis.

The Appeals Court decision, written by Judge Debra Ann Livingston, stated that the law targets the specific exercise of a particular religious practice without broader applicability, since oral suction during circumcision is not practiced among the general U.S. population. Under the federal guarantee of free exercise of religion, this means that the law is subject to “strict scrutiny.”

The judgment mandated a strict scrutiny review of the law in the U.S. District Court in Manhattan, which had denied the plaintiffs a stay of the law’s enforcement.

The defendants, including Thomas Farley, commissioner of the New York City Department of Health and Mental Hygiene, alleged that the practice of metzitzah b’peh puts infants at risk of being infected by the herpes simplex virus, an infection common among adults that can have major health consequences for newborns.

The law was enacted in 2012 after at least 11 boys contracted herpes from metzitzah b’peh between 2004 and 2011. Two of them died and two others suffered brain damage.

The plaintiffs, including Agudath Israel of America and the International Bris Association, in seeking a permanent stay on enforcing the law argued that it circumscribed religious rights among observant Jews.