Appeal Brief Filed in NYC Milah Case

In a meticulously researched and detailed brief signed by lead attorney Shay Dvoretzky of the Washington-based Jones Day law firm, the plaintiffs sought to discredit the lower court’s decision on numerous legal and factual grounds.

The appeal was filed by Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, the Chabad-affiliated International Bris Association and three mohalim against a regulation that requires mohalim to ask parents to sign a consent form that espouses the New York City Department of Health’s view associating metzitzah b’peh (MBP) with serious health risks.

Mohalim and leading medical experts reject the city’s claim based on precedent and medical knowledge.

“The lawyers at Jones Day did an exceptional job at presenting exactly why the District Court erred in deciding against us on our preliminary injunction motion,” Yerachmiel Simins, an attorney for the plaintiffs, told Hamodia on Monday.

“Even DOH officials themselves admitted that the regulation targets a religious practice, and they also admitted to focusing on mohalim and Rabbanim to speak and act against their religious beliefs. We are hopeful, iy”H, that the Circuit Court will see the merits of our arguments,” Simins added.

In response to a request by Hamodia for comment, a lawyer for the city emailed back on Monday evening that “We haven’t seen the brief yet, but are confident the lower court’s thorough and well-reasoned decision upholding the rule will stand.”

In February, the appeals court refused a request for an emergency stay blocking implementation of the regulation.

The city now has 90 days to file their reply, and then the plaintiffs will have the opportunity to file their rejoinder. At some later date — probably months from now — oral arguments are expected to take place.

The brief argues that the city is constitutionally prohibited from forcing mohalim to disseminate a message with which they disagree — namely, that metzitzah b’peh, which they believe to be a requirement of Jewish law and is safe, should not be performed.

In particular, the appeal takes aim at the lower court’s claim that the regulation does not compel speech because mohalim can avoid the requirement by refraining from conducting metzitzah b’peh.

In their argument, the plaintiffs stress that that reasoning conflicts with seminal Supreme Court cases and Second Circuit precedent, because nearly all cases of compelled speech involve conditions on voluntary conduct.

The appeal also seeks to discredit the claim by the city that MBP has been linked to the herpes simplex virus (“HSV”), calling the scientific basis for the department’s position to be “woefully lacking.”

“Not only is there no DNA proof that HSV has ever been transmitted via MBP, but empirical data fail to show even a statistical correlation between the practice and the disease,” the brief states.

“In the absence of real evidence, biological plausibility is merely educated speculation,” the lawyer for the Jewish organizations writes. “If transmission through MBP were not only plausible but also actually happening, one would expect a statistically significant association to appear in data. Yet the existing data do not show a correlation — much less a causal connection — between MBP and neonatal herpes.”

Informal data from Kiryas Joel, New York, where nearly every male infant is circumcised using MBP, show only one case of neonatal HSV over nearly three decades— “and the mohel in that case was proved not to be its source,” he wrote.

The brief also includes a newly released analysis by the Penn Medicine’s Center for Evidence-based Medicine of the city’s claims regarding MBP which largely corroborates positions taken by the expert witness for the plaintiffs and finds the city’s evidence base to be “small and significantly limited.”

This article appeared in print on page 1 of the April 9th, 2013 edition of Hamodia.