Beesquared

The City of New York is facing a higher legal hurdle in its efforts to tamp down transmission of a deadly form of the herpes virus that can occur during some types of Jewish circumcision.

City officials must show that a prohibition against a person performing oral suction of the circumcision wound without the written consent of the parents or guardian of the infant being circumcised is not religiously motivated, the U.S. Court of Appeals for the Second Circuit held in a decision released last Friday.

The ruling, which addresses a ritual act known as metzitzah b’peh, or MBP, means that a regulation adopted by the city in 2012 that requires parental consent will be struck down if officials cannot demonstrate that the law does not purposely interfere with the rights of the plaintiffs, who include several ultra-Orthodox Jewish groups and rabbis who perform circumcisions.

The city contended that the regulation only incidentally burdens the plaintiffs’ rights under the First Amendment, which prohibits laws that interfere with the free exercise of religion. The regulation should be upheld so long as the court finds that it has a rational basis, the city argued.

The appeals court sided with the plaintiffs, finding that regulating conduct that is done for religious reasons only does not, by itself, contravene the Constitution. However, “where the object of the law itself is the regulation of religious conduct – the law is subject to heightened scrutiny, and not to rational basis review,” Judge Debra Ann Livingston wrote for the three-judge panel.

At issue is the practice of MPB, which city officials say contributes to about 10% of herpes simplex virus, or HSV, infections among infants that occur after birth. Because newborns lack developed immune systems, about one-fifth of infants who contract HSV die from the infection, while those who survive can suffer brain damage.

New York City has about 15 cases of neonatal HSV infection a year, among roughly 125,000 live births, according to evidence presented at trial.

In 2012, the plaintiffs sued the city, charging that the regulation burdens their free exercise of religion and should be subject to strict scrutiny by the courts. The plaintiffs contend that Jewish religious authorities deem MBP to be the only acceptable means to enact metzitzah.

In her opinion, Livingston contrasted two of the U.S. Supreme Court’s leading decisions interpreting the Free Exercise Clause. The first, a 1993 decision, struck down a city ordinance in Hialeah, Florida that the court found aimed solely to suppress animal sacrifice by adherents of Santeria. The second, a 1990 case, upheld Oregon’s prohibition on ingesting peyote, finding that the law was not specifically directed to religious practice, despite claims by two Native Americans that they had consumed the drug for religious reasons.

Livingston concluded that New York City’s regulation governing the practice of MPB is the type of law at issue in the Hialeah case. “The regulation purposely singles out religious conduct performed by a subset of Orthodox Jews,” she wrote. “And the regulation applies exclusively to the religious conduct performed by this religious group.”

“Thus, while the interests at stake in this litigation are serious on both sides, requiring the most careful calibration, the method for this calibration cannot be a mere rational basis, Livingston added. “Strict scrutiny must apply.”

At trial, the City of New York introduced the testimony of an expert from the Centers for Disease Control and Prevention who characterized the evidence tying oral suction to neonatal infection of HSV as “strong, consistent and more than biologically plausible.”

New York City logged 11 confirmed cases of HSV in infants born between 2000 and 2011 who had undergone a circumcision that likely involved oral suction, according to a study performed by the city’s Department of Health & Mental Hygiene.

According to the city, the rate of HSV infection following direct oral suction is three to four times greater than for males born in New York City who did not have oral suction.

Though Jewish law requires that male children be circumcised on the eighth day after their birth, the practice of MPB occurs primarily among members of the Satmar, Lubavitch and other Hasidic sects. The city conceded at trial that MBP is the only conduct covered by the regulation.

For their part, the plaintiffs charged that the study cited by the city in support of the regulation contains insufficient evidence to determine that the tie between MBP and HSV transmission has resulted in actual infections. The plaintiffs also asserted that mohelim, the rabbis who perform MBP, are trained to take steps to prevent the spread of HSV, including refraining from performing circumcisions if they exhibit any symptoms of HSV infection.

The city adopted the regulation about seven years after it first warned rabbis, religious leaders and physicians of the risks of MPB.

The 2nd Circuit’s ruling does not mean that the plaintiffs will succeed in overturning the regulation.

“The Department has asserted interests that are substantial and may prove, on analysis, to be compelling,” Livingston wrote. “Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.”

The plaintiffs hailed the decision as a “great victory,” and said they remain ready to work with city officials “to protect our children’s health while fully respecting and accommodating our religious practice,” according to a report by Reuters.

The city’s law department had no comment on the ruling.