The suit argues that the DOH is attempting to discourage the practice known as metzitzah b’peh (MBP) by requiring all rabbis who perform the ritual, referred to as mohelim, to distribute a form stating that MBP can lead to serious health risks. That regulation violates both the rights to free speech and freedom of religion.
“Not only is the Department of Health wrong about metzitzah b’peh, it is trying to enforce its erroneous opinions on the people of New York City,” said Hank Sheinkopf, spokesperson for the group. “By essentially starting a public intimidation campaign that forces private citizens to spread the government’s beliefs, they are shaking the core of our democracy. We believe the courts will stop this overzealous government overreach and keep them out of our speech and religion.”
The suit argues that “the government cannot compel the transmission of messages that the speaker does not want to express—especially when the speaker is operating in an area of heightened First Amendment protection, such as a religious ritual.”
The lawsuit is supported by affidavits from experts in infectious diseases, epidemiology and statistical analysis that question the assessment and methodology of the DOH in forming its opinion about the safety of MBP.
The suit was filed in federal court in Manhattan and asks to stop the DOH from implementing its regulation. The organizational plaintiffs are the international Bris Association, Agudath Israel of America, the Central Rabbinical Congress of the United States & Canada; the mohel plaintiffs are Rabbi Samuel Blum, Rabbi Aharon Leiman and Rabbi Shloime Eichenstein.
As the suit states on the DOH’s own theory, there have been eighty-four cases of HSV reported in infants over the past five years, and 79 of those cases arose in females, uncircumcised males or males whose circumcision did not include MBP. Yet the few cases that might possibly have arisen after MBP have been the sole focus of the Department’s regulatory attention, leaving entirely unaddressed the other risks of HSV which accounts for well over 90% of reported cases. After correcting for the Department’s methodological errors, these expert affidavits demonstrated that HSV arises no more frequently after MBP than it does in newborns who did not receive MBP.