Emergency Motion in Bris Milah Appeal Cites ‘Irreparable Harm’
By Debbie Maimon
Orthodox Jewish plaintiffs in the bris milah lawsuit against the City of New York filed an emergency motion with the Second Circuit Court of Appeals last week, petitioning for a stay of the anti-metzitzah “consent” law while the case is being litigated in the appeals court.
The emergency motion argued that the plaintiffs would suffer ‘irreparable harm’ by having their rights to freedom of speech and religion violated while the case is pending.
“Irreparable harm” refers to a loss that cannot be undone. Being forced to violate one’s conscience cannot be undone. Being deprived of the freedom to exercise one’s constitutional right in even a single instance is irreparable. The past cannot be reversed.
The emergency motion was filed after a federal judge ruled against the plaintiffs in a lawsuit that claimed that regulating bris milah and forcing mohalim to malign their religious beliefs is unconstitutional. The judge also lifted the stay, making the “consent” regulation immediately enforceable.
As the battle for bris milah continues in the courts, the implications of having a law on the books that says metzitzah b’peh kills babies is slowly filtering down to the grassroots. Jewish residents of New York City are discovering they have been forced into an impossible moral dilemma, compelled to either violate their conscience or the law of the land.
At a bris last week in Far Rockaway, conversation turned to the regulation at the heart of the lawsuit that requires parents to acknowledge in writing the so-called dangers of metzitzah b’peh.
The following exchange took place between the father of the baby and a friend, after the father shared that the daas Torah he received from his rov was to conduct himself exactly as he had with the brissim of his other children.
“So what does that mean as far as metzitzah b’peh is concerned?” the friend asked.
“It means to stick to mesorah.”
“And what of the legal requirement to sign that you understand the “dangers”?
“Well, that’s asking me to put my name to two lies: One, that a mitzvah from the Torah can harm my baby. Two, that I am ready and willing to endanger my child. The first lie violates everything I stand for. The second lie puts me and my entire family in sakana. Do I look like a fool?”
“How does it put you all in sakana?”
“Suppose, chas v’sholom, the baby somehow catches a herpes infection. The government comes running down and immediately looks for evidence of metzitzah b’peh. They ask for the consent form. There it says the mohel did metzitzah b’peh with the parents’ consent. To the government that’s an admission of guilt: My wife and I authorized something that put our baby’s life at risk. Those are grounds to charge us with child endangerment, to take away our children and put them in foster care.”
“But that scenario would never happen. It’s totally far-fetched.”
“Is it? Are you willing to be a test case? I’m not.”
WHAT MESSAGE ARE WE SENDING OUR CHILDREN?
As law-abiding citizens, Orthodox Jews want to comply with government regulations to the best of their ability. But if they heed the law and put their signature to the anti-MBP libel, that very document, people are realizing, can become the instrument of their own doom in the event of a DOH investigation.
Cases have been documented in these pages of child protection agencies and the DA’s office opening investigations for child neglect or endangerment, for no reason other than their baby being diagnosed with neonatal herpes some time after a bris milah.
That is because the DOH has wedded itself to the false doctrine that MBP causes herpes, and immediately pounces on the mohel as the culprit in any case of neonatal herpes where MBP was performed during the bris.
In addition to placing families in danger, if the consent law stays on the books, children may witness their parents maligning a practice sacred to Jewry for millennia. What message will that send them about the Jewish faith?
And if they know their parents are only paying lip service to the libel because they are being forced to, what message does that send about their parents - their moral courage, their willingness to be moser nefesh for amitzvah?
TRAPPING THE MOHEL IN HIS OWN WEB
The conflict for mohelim is potentially even more excruciating than for the parents. Busy parents of a new baby will inevitably arrive without a consent form, at which point the mohel would be compelled by law to transmit to them the DOH’s vilification of MBP.
Not only does this force him to trash his religious beliefs on a routine basis, it also turns him into an unwilling accomplice in the event of a DOH investigation.
The law is cleverly crafted to ensure that incriminating information sought by the government is delivered - via the signed consent form - by the very targets of the investigation, the mohel and the baby’s parents. The consent form must remain in the mohel’s possession and turned over to the DOH upon request.
This spares the government the time-consuming headache of trying to worm out the mohel’s identity, and whether he performed MBP, from Jews unwilling to masser. In a cynical twist, mohel and parents involuntarily become the instrument of their own persecution, aiding the government in trampling on their constitutional rights.
The spectacle of the mohel being compelled to inform on himself no less than the parents of a baby he circumcised fuels revulsion for the consent law in the Orthodox community.
That sentiment is heightened by the perception in many quarters that the City is motivated not by humanistic concerns but by an anti-religion agenda.
USING ‘THE PUBLIC GOOD’ AS A FOIL
Are such apprehensions merely the product of paranoia, of a “siege mentality,” that Jews are often accused of harboring? Or is the suspicion that officials are using “the public good” as a foil to enable the assault on a religious practice grounded in something real?
The appearance of sham in the City’s position invites the latter conclusion. One has only to take a close look at court papers to spot multiple instances of truth-twisting and/or duplicity on the part of City officials and their experts.
If the City truly believed MBP was dangerous and had the hard evidence to prove it, there would be no need to resort to these tactics. Consider a few examples:
In a previous article, we wrote of the affidavit given by a leading expert for the City. The testimony of the infectious disease specialist began with a listing of titles, honors and achievements that ran on for two pages, was shown to contain false testimony.
In his sworn affidavit, the infectious expert, Dr. Richard Whitley, attacked an Orthodox Jewish delegation, which had sought his professional advice for protecting the practice of MBP, for falsifying his statements to serve their own purposes.
Yet the evidence - on display in a letter of response penned by Dr. Whitley, who had either forgotten about it or hoped the delegation did - showed conclusively that it was the doctor himself who was trying to rewrite history.
Frozen in time, the doctor’s supportive endorsement of the delegation’s efforts totally discredits his present day testimony. His affidavit to the court, replete with character assault against respected members of the delegation and denial of facts on record, is a study in witness unreliability - if not outright duplicity.
HEALTH COMMISSIONER’S TESTIMONY RAISES CREDIBILITY ISSUES
Credibility issues also plague the testimony of NYC Health Commissioner Dr. Thomas Farley, who claims that evidence taken from 11 cases of neonatal herpes proves that “MBP has transmitted herpes to newborns.”
Yet Attorney Yerachmiel Simins, who served as counsel for the mohel or the parents in a number of these cases, wrote in an affidavit that “Dr. Farley and his co-defendants have based their claimed link on speculation, mischaracterization of the facts, and a telling refusal to pursue hard evidence.”
Simins goes on to detail for the court the specific ways in which Farley “misrepresented or omitted key facts” in his testimony regarding the 11 cases. Farley tried to prop up his theory about MBP, Simins wrote, by pointing to a cluster of cases of neonatal herpes, a set of twins and a third infant that Farley linked to a single mohel.
Yet the mohel in question asserted he had not performed MBP on this infant. To satisfy disbelieving authorities, the mohel even submitted to a lie detector test, which determined he was telling the truth. Farley’s insistence that this mohel was the culprit backfired terribly, tarnishing the health commissioner’s other assertions.
[Regarding the twins who had come down with herpes, common sense points to the fact that the source of the infection lay with a family member or caregiver, as opposed to the mohel. If the mohel, who has performed thousands of brissen, were a herpes carrier, authorities would be able to point to not merely three cases, but scores upon scores.]
Farley’s truth-twisting to create a link where none exists is on display in other places in court papers, detailed in the Simins affidavit. His statements regarding the case of a baby who died of herpes in September 2001 clashes with both the mother’s testimony about vital facts in her baby’s illness, as well as facts in the hospital record.
Certainly the biggest credibility gap in the City’s case are the allegations in the CDC study on which the Department built its campaign against MBP. This is the study whose unfounded assertions and conclusions are so glaring that the district court judge in “round one” of the lawsuit - the Dec. 18 hearing - simply set the whole report aside.
In this closely watched case, the City’s elaborate edifice of sand will have to withstand the heightened scrutiny of the Second Circuit Court of Appeals. The actual appeal will be filed in a matter of weeks. But a sense of the Court’s general direction will be gleaned from its decision - due any day - on the emergency motion for a stay.