Appeal Filed in Landmark Milah Case

NEW YORK -

Days after a federal judge refused to grant a preliminary injunction against an unprecedented regulation of bris milah, and lifted the stay  preventing it from going into effect, three Jewish organizations and three mohalim, representing a wide spectrum of Torah Jewry, took their fight to the United States Court of Appeals for the Second Circuit.

In the appeal that was filed on Tuesday afternoon, the attorneys asked the higher court for an emergency stay blocking implementation of the regulation, saying that reversal of the judge’s ruling was likely “because the district court’s reasoning is manifestly indefensible.

“But, in the meanwhile, the regulation has taken effect, and appellants must violate either their religious faith or the law of the land. This is the plainest imaginable irreparable harm. By contrast, preserving the status quo would cause no harm. Jews have been safely performing MBP [metzizah b’peh] for millenia without government intervention,” the brief declared.

In a ruling issued late Thursday, Judge Naomi Reice Buchwald ruled against the lawsuit brought by the Satmar-affiliated Central Rabbinical America, the Chabad-affiliated International Bris Association and three mohalim who were seeking an injunction against a newly enacted regulation.

This regulation, requiring mohalim to ask parents to sign a consent form which espouses the NYC Department of Health’s view associating metzitzah b’peh (MBP) with serious health risks, a position rejected by mohalim and leading medical experts.

“Although obviously disappointed by the District Court’s ruling on our motion for a preliminary injunction, we look forward to ultimately vindicating our substantive and fundamental rights of free exercise and speech,” said Yerachmiel Simins, Esq., speaking on behalf of the plaintiffs Thursday night immediately after the ruling. “And we firmly believe, based on a careful review of all of the medical data, that MBP is safe, as it has been for thousands of years,” he added.

The city hailed the Court’s decision.

“We are gratified the Court is allowing this significant public health rule to proceed unimpeded,” said Michelle Goldberg-Cahn, Senior Counsel, Administrative Law Division, NYC Law Department, who argued the case on behalf of the city.

In her 93-page decision, Judge Buchwald rejected the claim that the City is constitutionally prohibited from forcing mohalim to disseminate a message with which they disagree —  namely, that an act they believe to be a requirement of Jewish law should not be performed.

“If a parent arrived with her infant on the day of the bris and did not have a consent form, section 181.21 would simply require that the mohel not perform MBP until the parent somehow procured a consent form, signed it and gave it to the mohel. Nothing in the regulation would require the mohel to provide the consent form himself,” the judge wrote.

“Indeed, if a mohel fundamentally objected to the Department’s consent form and to the language required to be included on other consent forms, and it was (counterfactually) impossible for the parent to obtain a consent form independently, the mohel would still be free not to say anything or otherwise to undertake any communicative act. He simply could not perform MBP,” she added.

In their appeal, the attorneys for the plaintiffs pointed out that “in all of the seminal Supreme Court cases invalidating compelled speech,” the individual could avoid the compulsion by refraining from the activity in question.

“Quite plainly, this is not the law. Forcing private actors to disseminate the government’s message — and especially its value-laden advice — is presumptively unconstitutional, and that remains true even if the regulated actor could avoid the compelled-speech burden by refraining from the regulated activity altogether,” the brief stated.

In her ruling, while acknowledging that the regulation focuses on a single religious practice, Judge Buchwald said that “the law furthers legitimate governmental interests implicated by the regulated conduct; it does not target the conduct’s underlying religious motivation.” For this and additional reasons, she rejected the claims by the plaintiffs that their religious rights would be violated by this regulation.

“Based on the records presently before us, we conclude that [the] plaintiffs are not likely to succeed on the merits of any of their claims,” she concluded.

In their appeal, the attorneys noted that while the judges’ rejection of the religious rights claim was “equally flawed,”  given space limitations, they chose to focus on the Free Speech aspect, as in order to obtain an injunction it would suffice to show probable success on at least one claim.

Three expert witnesses had submitted affidavits on behalf of the plaintiffs — Dr. Daniel S. Berman, since 1989 Chief of Infectious Diseases at the New York Westchester Square Hospital Medical Center and an outspoken advocate for several years of the safety of MBP; Dr. Awi Federgruen, a noted expert in the field of statistics; and Dr. Brenda Breuer, Director of Epidemiologic Research at the Department of Pain Medicine and Palliative Care at Beth Israel Medical Center in New York.

While the original, stated reason for the regulation was a highly controversial and disputed Centers for Disease Control report, the judge accepted the argument put forth by the city that the regulation was legally permissible, even though the accuracy of that report was strongly attacked by Dr. Berman and the other expert witnesses.

Instead, the court said that the opinions of other medical experts and medical organizations sufficed — even though the claims made by these experts were similarly disputed.

Unlike the experts who gave affidavits on behalf of the city, Dr. Berman — who is considered one of the foremost experts on the safety of MBP — has personally investigated the cases of illness or death that were allegedly linked to MBP. Based on his firsthand knowledge and careful, unbiased research, Dr. Berman has repeatedly stated that there is no proof that MBP has ever caused a child to fall ill.

State Senator Simcha Felder, who, as a city councilman, had played a key role defending MBP seven years ago, told Hamodia that he was disturbed by the news of the ruling.

“I am profoundly concerned about the judge’s refusal to grant an injunction against the regulation of bris milah, which is a violation of the fundamental rights of both freedom of speech and religion,” Felder said.

“We have always remained steadfast in observing every religious ritual under the most trying of circumstances; it’s hard to believe that we are facing this challenge in our wonderful democracy,” he added.

Assemblyman Dov Hikind  said the news made him “angry.” He expressed his outrage at the notion that Mayor Michael Bloomberg should act this way.

“This originates from the mayor, this was pushed by the mayor; he is the one responsible for putting us through this,” the Assemblyman stressed, adding that none of the prominent non-Jewish politicians would ever have initiated a governmental regulation on milah.

“To take something so fundamental, so basic, to interfere with it under a Bloomberg administration — under a Jew — is something that is so painful,” he added. “With Hashem’s help we will overcome this, but the money that has to be spent, the efforts that have to be made…”

Hikind pointed out that this regulation is deeply offensive to parents as well as mohalim. “Every parent loves his children; they don’t need the government to tell them what to do.

“My daughter has four boys,” he revealed. “Her husband is a doctor. At the bris of their children, metzitah b’peh was performed. This didn’t suddenly start, it is not a new thing; [MBP] has been practiced for thousands of years.”

Councilman David Greenfield told Hamodia that he was very disappointed by the Judge’s decision.

“I am committed to doing everything in my power to overturn this outrageous regulation on bris milah,” Greenfield said.

“As a community, we need to be strong and send a clear message that we will not tolerate government intrusion into a mitzvah that we have been performing for over 3,700 years. We have had bigger challenges to bris milah over that time than this and we will b’ezras Hashem overcome this challenge as well.”

As the ruling only referred to the request for a preliminary injunction, regardless of what the higher court will ultimately decide on this appeal, the actual case will be continuing before the same judge.


 

Parts of this article appeared in the Friday and Tuesday daily editions of Hamodia.