Media Typo Muddying the Waters in Milah Case

The difference was in a single letter, a mix-up between an “S” and an “I,” but it was enough to prompt an influential conservative radio host to blast the Orthodox Jewish community for practicing associating metzizah b’peh (MBP).

The latest twist in this saga came when FOX News erroneously quoted New York City officials as saying that a child had contracted the dreaded HIV virus, for which there is no known cure, after undergoing a bris that included MBP. It later corrected the story to read that the city claimed the infant was diagnosed with HSV or herpes simplex virus.

Conservative pundit Michael Savage soon jumped into the fray; quoting the original FOX report, he spent an hour harshly condemning the community for its “barbarism.”

Yerachmiel Simins, an attorney and askan at the forefront of the battle to protect the right to practice MBP says that the city’s claims of two new cases of herpes “say nothing new about any supposed link to MBP.

“Neonatal herpes occurs in the general population — and unfortunately will continue to occur,” he told Hamodia on Tuesday. “During the period the New York City Department of Health  claims to have identified 5 HSV cases associated with MBP, they found 79 cases of neonatal HSV that even they acknowledge had nothing to do with MBP. Whatever caused those other 79 cases — contact with family members and caregivers — could easily have been the cause of the remaining 5, and the cause of these 2.  And such causes are clearly documented, with matching DNA evidence, in the medical literature — unlike MBP,” Simisn said.

The attorney cautioned that HSV is dangerous to newborns and the public can take reasonable precautions to prevent its spread.

“Parents should wash their hands before changing any circumcision dressing, and should keep anyone with active cold sores away from newborn boys and girls,” he said. “If healthcare workers in hospital maternity wards, nurseries, convalescent homes or other facilities that deal with newborns are observed with cold sores, they should be reported at once to supervisory personnel or the local health department.”

The developments came on a day after attorneys for three major Jewish organizations and three mohalim on Monday filed a brief asking the federal second Court of Appeals to overturn a lower court’s decision denying an injunction against New York City’s unprecedented regulation of bris milah.

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.

“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.

Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, says the brief “lays out the weakness of the City’s position very forcefully and very effectively.

“For our community, it is important to emphasize that the City’s new regulation represents the first time in the history of this country that government has sought to regulate an aspect of bris milah,” the Agudah leader said. “We cannot stand by idly and accept such an unprecedented intrusion upon a hallowed religious practice. B’siyatta diShmaya we hope to prevail in the end.”

In response to a request by Hamodia for comment, a lawyer for the city emailed back on Monday evening: “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 mohalim believe to be a requirement of Jewish law and which they consider to be 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 of 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 D1 of the April 11th, 2013 edition of Hamodia.