NYC to End Regulation of Bris Milah

(Gershon Elinson/Flash90)

In a long awaited decision that was hailed by members of the Jewish community, a spokesperson for Mayor Bill de Blasio announced late Tuesday afternoon that the city had reached a tentative agreement with community representatives that would end the highly controversial regulation of bris milah enacted by the Bloomberg administration. In its place, a new protocol will be implemented, one that will use cutting-edge DNA testing to determine the real source of herpes infection in infants.

“This is an important victory for religious freedom,” Yerachmiel Simins, an attorney for the Jewish groups who filed the lawsuit, told Hamodia.

The previous regulation required mohalim to ask parents to sign a consent form espousing the NYC Department of Health’s view associating MBP with HSV-1 herpes infections, a position dismissed by leading medical experts and veteran mohalim. The City has now agreed to take all necessary steps to withdraw the regulation requiring consent and will not regulate any aspect of bris milah.

“The City and the community have tentatively agreed to work collaboratively to engage in a comprehensive DNA-based investigation to determine the source of any infection,” Simins said.

The unprecedented regulation, which was adopted by the NYC Board of Health in September 2012 and went into effect in January 2013, was viewed by members of the community as a grave infringement of religious liberties and a dangerous precedent. Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, the Chabad-affiliated International Bris Association and three mohalim then filed a lawsuit in federal court against the City, saying that the regulation violated their constitutional rights to both freely exercise their religion and to free speech — as it forced 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 a safe practice, should not be performed.

During his election campaign, de Blasio had promised to revisit the issue and reach a consensus with the community, and sources confirmed to Hamodia that the deal announced on Tuesday is supported by leading Rabbanim.

“This new agreement fulfills the mayor’s commitment to finding a more effective policy that protects children and religious rights in a way that more actively engages the cooperation of the community,” the mayor’s office said in a press release.

“While the de Blasio Administration continues to believe that MBP carries with it health risks, given the sacred nature of this ritual to the community, the Administration is pursuing a policy centered around education of health risks by the health-care community and respect for traditional practices by the religious community. Increasing trust and communication between the City and this community is critical to achieve the Administration’s ultimate goal of ensuring the health and safety of every child, and this new policy seeks to establish a relationship based on engagement and mutual respect,” the City said.

In a conference call with reporters, an Administration official who spoke on background said that “we agree to disagree” with the community about the practice of MBP, and conceded the pivotal importance of the practice to the community.

“This is a community that profoundly believes this is the most important thing in their religion,” the official said. “They will never allow it to be banned; they will go underground to do it.”

The official also acknowledged that working with the community was key to safeguarding the health of the children.

“No one cares more about the safety of these children than the community,” the City official said.

Under the agreement, the Board of Health will be petitioned to repeal the regulation, and the Administration — which until now has defended the regulation in the legal battle — will jointly inform the court that the City now agrees to a stipulated agreement that will do away with the regulation.

“Baruch Hashem there are many people to thank for the hatzlachah we saw today,” Simins told Hamodia. “The Rabbanim, whose guidance directed all our efforts; the different organizations involved who stuck together throughout and whose achdus created a gevaldige koach; the mohalim who remained strong despite the regulation; and those in the community, including Hamodia, whose support was so critical. And, of course, we give thanks above all to Hakodesh Baruch Hu — may He continue to bless our efforts.”

“The Bloomberg Administration’s regulation of metzitzah b’peh represented the first and only time in the history of the United States that government has sought to regulate an aspect of bris milah,” Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, a plaintiff in the case, told Hamodia.

“Our Gedolei Yisrael felt that this was intolerable, and could lead to other governmental incursions on bris milah, and so instructed us to mount a legal challenge against the regulation. It is to Mayor de Blasio’s eternal credit that he recognized how profoundly offensive the regulation was to our community, and worked with us to undo the terrible precedent his predecessor had established,” Rabbi Zwiebel added.

Rabbi Dovid Niederman, a representative of the CRC, also a plaintiff in the case, expressed his thanks to “Mayor de Blasio and his entire Administration, specifically Deputy Mayor Lilliam Barrios-Paoli, the mayor’s senior aide Avi Fink, and the Department of Health for doing what it is right in eliminating this Consent Form.”

Isaac Sofer, director for external affairs at Satmar’s United Talmudical Academy in Williamsburg, called it  “an historic day for Klal Yisrael.

“With this historic agreement we are turning a new page on practicing religious freedom in NYC,” Sofer said. “The mayor kept his promise and with that he is restoring the community trust in the process,” he added.

State Senator Simcha Felder, who, as a city councilman, played a key role in fighting for the right to perform MBP eight years ago, issued a statement praising the ruling.

Baruch Hashem, the battle I began years ago when I was in the City Council against the Bloomberg Administration’s edict prohibiting metzitzah b’peh has finally been won,” Felder said. “The Bloomberg Administration acted with such chutzpah, and willfully violated our religious freedom. Mayor de Blasio promised, during his campaign, to correct this appalling violation. As a result of ongoing discussions, concluding with today’s meeting, he is making sure that everyone, regardless of their beliefs, can practice their religion without fear of government interference. I am very thankful to the mayor.”

In a statement, NYC Councilman David Greenfield echoed those sentiments.

“I am thrilled that the de Blasio Administration has annulled New York City’s unconstitutional regulations on bris milah — a 3,700 year religious obligation of circumcision. Separation of church and state is a two-way street. It is significant that the Administration is agreeing to do away with ineffective measures put in place by Mayor Bloomberg, and instead embracing an informational campaign that has proven effective in other parts of the country.”

Under the terms of the tentative agreement, in cases where an infant is diagnosed with HSV-1 herpes, the community will cooperate with the Health Department in identifying the mohel in question and ask the individual to undergo testing. If the mohel tests positive for the virus, the Health Department will conduct DNA testing to attempt to definitively establish the source of the baby’s infection as part of a comprehensive investigation of any other possible sources. If the mohel is found, by DNA match, to have infected the infant, he will be banned for life from performing MBP by the Health Department.

The NYC protocol is expected to be similar to the one successfully put into place by the Rockland County Health Department with the close cooperation of the local Orthodox community. Over the two-year period that the Rockland protocol has been in effect, eight cases were presented to the Rockland County Health Department. Five were conclusively determined not to be HSV-1. Of the remaining three, the mohalim were tested under the terms of protocol. One led to an inconclusive result, as not enough virus was detected in the mohel to warrant DNA testing. In the other two cases it was conclusively determined that the mohalim were not a DNA match to the respective infants.

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