2016 Annual Assessment

Annual Assessment 2016

Dr. Shlomo Fischer

Avinoam Bar-Yosef, Susanne Cohen-Weisz, Rémi Daniel, Chaya Ekstein, Dan Feferman, Avi Gil, Inbal Hakman, Michael Herzog, Simon Luxemburg, David Landes, Dov Maimon, Steven Popper, Uzi Rebhun, Shmuel Rosner, John Ruskay, Noah Slepkov, Shalom Solomon Wald, Einat Wilf

Barry Geltman
Rami Tal

2016 Annual Assessment

A fundamental principle of liberal Enlightenment thought, one that is pervasive in American society, is that the individual is the basic unit of society and the bearer of rights. Haredim value the group as opposed to the individual, and consider it to be the bearer of rights. This orientation was made abundantly – and to many non-Haredim, shockingly – clear in a very public controversy in New York City that carried on for a number of years. The controversy concerned the traditional practice of metzitzah ba-peh (MBP), the sucking of the circumcision wound by a mohel. Between 2004 and 2011, 11 male infants in New York City were stricken with the herpes simplex virus within days of having had MBP performed at their circumcision. Two of the babies died and two suffered brain damage.29

Mentioned in the Mishna, MBP had been a part of the traditional Jewish circumcision rite until the nineteenth century when medical professionals claimed it was unhygienic and a potential cause of infection. The question of whether to continue the practice divided the Orthodox Jewish community. Some rabbinic authorities asserted that suction is not an essential part of the circumcision ritual and could be abandoned or, alternatively, that the suction could be performed through the medium of a tube. Other more conservative authorities ruled that the practice of direct oral suction must be preserved unchanged. Hasidic rabbis were prominent in their advocacy for the maintenance of the custom, and to this day Hasidim and many within the Yeshivish community practice MBP. The Modern Orthodox community opposes MBP, and its rabbis have ruled that if suction is to be performed, it must be done through a tube.30

The Centers for Disease Control and Prevention issued a report in 2012 advising against MBP, warning that it raises the likelihood that an infant will get herpes by 340 percent. Despite intense lobbying of the Bloomberg administration by the Agudath Israel, the New York City Board of Health passed a law requiring mohels to collect consent forms from parents containing an acknowledgment by the parents that MBP “exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.” More than 200 Orthodox rabbis ordered their followers not to comply with the new regulation. 31 The Agudath Israel filed a lawsuit in federal court claiming that the regulation was an unconstitutional restriction on the freedom of religion. 32

The MBP regulation became an election issue one year later in the Democratic primary for mayor. The Satmar community of Brooklyn in particular exerted pressure on Bill de Blasio, who had been their community’s representative for over eight years in the City Council. At a rally for de Blasio sponsored by Satmar held days before the primary, a Hasidic spokesman announced, in de Blasio’s presence, that if elected, de Blasio would “take away, right away” the MBP consent regulation instituted by the Bloomberg administration and that Orthodox Jews would be able to practice the mitzvah of bris milah “without compromise.”33 Not long after de Blasio was elected mayor, and after consultations between the Board of Health and local rabbis, the city did indeed rescind the consent form regulation. The city reached an agreement with the rabbis that whenever a herpes infection occurred after an MBP circumcision, the Orthodox community would assist the city in identifying the mohel and in having him tested for herpes. If the mohel tested positive for herpes, the community would try to have him undergo further DNA testing to determine whether he had transmitted the disease. If an infected mohel were linked to an infected baby, the mohel would be prohibited from performing circumcision in the future.34 Just prior to the actions of the de Blasio administration, the Agudath Israel was successful in its appeal of a decision by a federal district court that upheld the constitutionality of the consent form regulation. The appellate court overturned the decision of the lower court and directed it to apply a more stringent legal standard as it held that the regulation impinged on the exercise of freedom of religion.35

While the rescinding of the consent form regulation and the institution of the new protocol was heralded by the Haredi sector as a great achievement, medical and public health professionals, many of whom were Jewish, criticized the move, as the number of herpes infections suspected to have been caused by MBP in New York City had jumped in the previous year. While the American understanding of individual rights awards parents the right to bring up children as they see fit, the Haredi attitude towards MBP goes beyond this common understanding. The Haredi community stood firm in its belief that it is impossible that a practice that Jews have performed for centuries and endorsed by the Talmud could cause harm to Jewish infants. The argument that infants should not be made to risk significant physical harm and even death for the beliefs of their parents and community carried no weight with them, as the community, not the individual infant, is in their understanding the bearer of rights, and the right of the community to ensure its continuity and way of life is of highest importance. This same attitude would seem to underlie the resistance of the Hassidic community to report cases of child and domestic abuse to the police and local governmental authorities.