The Metzitzah B’Peh Controversy
Several readers, who are not Jewish Observer subscribers, wanted to read the article on Metzitzah B’Peh by R’ Chaim Dovid Zweibel to which Jonathan Rosenblum referred earlier today. It is enclosed herein, and explains why the Agudah was so silent on the controversy last year.
Between Public Health and Mesores Avos:
An Inside Account of the Metzitza B’peh Controversy
I. Tragedy and Confrontation
On October 26, 2004, an 18-day-old baby boy died in Maimonides Medical Center in Brooklyn. The cause of death was a viral infection known as herpes simplex virus-type 1 (HSV-1). The infant’s twin brother was also diagnosed with HSV-1. Baruch Hashem, he survived.
The New York City Department of Health and Mental Hygiene became aware of the infections and commenced an investigation. The Department quickly zeroed in on the mohel who had performed the twins’ brissen as the suspected source of the HSV-1 infections. Specifically, the Department theorized that the mohel may have transmitted the virus when he performed metzitza b’peh upon the two boys.
As the Health Department was pursuing the case of the twins, it became aware of another case involving the same mohel, which had taken place nearly one year earlier in November 2003, in which a child in Staten Island was also diagnosed with the HSV-1 infection shortly following his bris. The Department’s information was that metzitza b’peh had been done in the Staten Island case as well.
He Said, They Said
The mohel in question is world renowned for his great expertise and incredible devotion to the mitzva of bris mila. He has performed many thousands of brissen throughout his lengthy career, many of them in far-away lands and under heroic circumstances. He is known to be extremely careful in ensuring the safety and well-being of the children and adults he circumcises.
The mohel contested the Health Department’s view that he was the most likely source of the HSV-1 infections in the November 2003 case in Staten Island and the October 2004 cases in Brooklyn. In the Staten Island case, he denied ever having done metzitza b’peh. Indeed, he said that he had detected troubling physical signs on the baby prior to the bris, which suggested that the child may have already been infected, and that he agreed to perform the circumcision only after the baby was checked by a pediatrician and cleared for the bris. Similarly, with regard to the Brooklyn case, the mohel stated that there too, prior to the brissen, he had detected suspicious physical signs on one of the twins (the one who ultimately died) and had insisted that a pediatrician give the child a clean bill of health before he would perform the bris. The mohel postulated that the child must have already been carrying the herpes virus, as evidenced by the pre-bris rash; and that his virus was in turn transmitted to his twin brother through a common caretaker.
But the Health Department remained convinced that the mohel was the most likely source of the infections, and that the means of transmission was metzitza b’peh. The Department claimed it had evidence that the mohel had in fact performed metzitza b’peh in the Staten Island case; that the timing and location of the herpes lesions on the infected babies suggested that the infections had been transmitted at their brissen; and that the laws of probability made it highly unlikely that anyone other than the mohel had transmitted the virus to the three infected babies.
In late December, 2004, a New York State Supreme Court judge issued an order requiring the mohel to (among other things) submit to certain Department-controlled medical tests to determine if he was a carrier of HSV-1, and prohibiting him from performing metzitza b’peh pending the outcome of the tests.
II. The Centrality of Mesorah
The Mishna (Shabbos 133a) describes metzitza, the suctioning of blood from the infant’s wound immediately following the circumcision cut, as one of the “tzorchei mila,” an essential component of bris mila for which one must even desecrate the Shabbos. The Gemara (Shabbos 133b) elaborates that a mohel who does not do metzitza puts the child in mortal danger and should be removed from his post.
For thousands of years, the practice of metzitza was universally done b’peh, through direct oral suction. Over the past 200 years or so, however, as concerns have been raised about a possible link between metzitza b’peh and various forms of illness, some rabbinic leaders have ruled that metzitza may or even should be performed through an intervening instrument. Some have allowed use of an absorbent gauze to draw out the blood. Nonetheless, many morei hora’a have continued to insist that metzitza should be done only through direct oral contact. In their halachic view, which is prevalent in the Chassidic world and much of the rest of the Chareidi community, metzitza b’peh is an integral and indispensable part of bris mila that cannot be compromised in any fashion.
This article is not the place (and this author is not the person) to offer a comprehensive halachic review of metzitza b’peh, or to delve into the extra-halachic reasons, al pi derech sod, that great tzaddikim have offered for the practice. (Interested parties may wish to see Rabbi Moshe Bunim Pirutinsky’s Sefer Habris, pages 213-226.) Nor has Agudath Israel taken an organizational position on the halachic necessity of metzitza b’peh. In refraining from issuing any formal p’sak halacha on the matter, Agudath Israel, as an umbrella movement created by Gedolei Yisroel from a wide variety of backgrounds, has adhered to its longstanding policy of encouraging each community to follow the halachic guidance of its own rabbanim and manhigim. Nahar nahar u’pashtei.
Scientists Playing Psychologists
Still, even without going into any of the halachic detail or taking any halachic position, it is appropriate to pause for a moment to register strong objection to a statement that appeared in an article in the August 2004 edition of Pediatrics, a highly respected medical journal. The article is a “case study,” “collected from personal communications and the experience of the authors from 1997 to 2003,” of eight infant boys who developed HSV-1 infections shortly after their brissen. Neonatal Genital Herpes Simplex Virus Type 1 Infection After Jewish Ritual Circumcision: Modern Medicine and Religious Tradition, Gesundheit, et al., Pediatrics, Vol. 114 no. 2, pgs. 259-263. Toward the end of the article – more about the main body of the article later – the authors digress from their medical/scientific discussion and offer their psychological insight on the rabbinic community:
Because the Talmudic injunction to perform metzitza did not explicitly stipulate oral suction, 160 years ago, Rabbi Moses Schreiber, a leading rabbinical authority, ruled that metzitza could be conducted by instrumental suction, a ruling quickly adopted by most rabbinical authorities. Consequently, the great majority of ritual circumcisions are performed today with a sterile device and not by oral suction by the mohel. However, some orthodox rabbis have felt threatened by criticism of the old religious customs and strongly resist any change in the traditional custom of oral metzitza.
Putting aside the question of the accuracy of the authors’ rendition of the halachic view of the Chasam Sofer (see, for example, She’eilos U’teshuvos Maharam Shik, Orach Chaim 152), or the correctness of their assessment of how “the great majority of ritual circumcisions are performed today” (in the Orthodox community, at least, I believe that many if not most brissen, certainly in the New York metropolitan area, are done with metzitza b’peh), the notion that rabbis who require metzitza b’peh do so because they “have felt threatened by criticism of the old religious customs” is nothing less than outrageous. This type of haughty condescension has no place in a medical journal and is an affront to the great geonim, tzaddikim and morei hora’a of our generation and generations past who have insisted that metzitza must be done b’peh as a matter of strict halacha. To impugn the religious motivation and halachic integrity of these Torah giants is a libelous cheap shot that reveals far more about the animus of the authors of the Pediatrics article than it does about the halachic status of metzitza b’peh.
Over-Reliance on Under-Reporting
That animus is on display elsewhere in the Pediatrics article as well: in the way the authors describe metzitza b’peh as an act “repeated several times until bleeding stops,” when in fact the entire metzitza is done in one swift split-second suction; in their definitive declaration that metzitza b’peh “is not part of the religious procedure,” as if a group of medical researchers are capable of rendering p’sak halacha; and, perhaps most significantly, in their unfounded speculation that the eight infants whose post-circumcision HSV-1 infections formed the basis for their study represent only a small percentage of babies who have been infected by the practice:
Because HSV-1 can be secreted intermittently in saliva for several days to weeks, it is likely that other infants were infected. We suspect, therefore, that this entity is underreported for cultural reasons and that the studies described here are only the “tip of the iceberg” of the true incidence of the disease.
If the authors’ “tip of the iceberg” suspicion were correct, one would assume that the halachic literature would be filled with responsa attesting to the frequency of post-metzitza infections. Such historical evidence, however, does not exist. As Rabbi S. R. Hirsch points out (Shemesh U’marpei, Yoreh Dei’a 54, 55), the historical experience of the Jewish people when they all lived together in Eretz Yisroel and circumcised countless thousands of children each year, all with metzitza b’peh and all without reported incident, represents a much more powerful “case study” than that performed by any contemporary researchers. Indeed, metzitza b’peh has been done many millions of times over the past several thousand years, and it was not until recently that any cases of post-circumcision herpes have been reported.
One would also assume, if the Pediatrics authors were correct, that pediatricians who service communities where metzitza b’peh is commonly performed – professionals who, after all, are in the best position to have first-hand knowledge of the phenomenon – would be aware of numerous instances of post-bris infections. But they are not. In fact, pediatricians in neighborhoods like Boro Park, Crown Heights, Williamsburg and Monroe, many of them with decades of experience in their respective communities, attest that the incidence of HSV-1 infection following metzitza b’peh is extremely rare. Some veteran pediatricians have even stated that, over the course of their lengthy careers during which they have seen thousands upon thousands of infant children, they have never even once encountered the disease.
One of the authors of the Pediatrics study, apparently unimpressed with the historical record and the real-world experience of community pediatricians, remains persuaded that metzitza b’peh has harmed many babies. He went so far as to suggest, in an interview with the New York Jewish Week, that “many children have been infected and not diagnosed, and years later they are in special education in the schools and no one knows why.” (City Urges Halt to Ritual Practice, Dec. 16, ’05.) This wild allegation is totally unsupported by anything other than the author’s theoretical musing and fevered imagination, and is a case study in how far a supposedly impartial medical researcher is capable of going in seeking to promote his viewpoint.
The Halachic Status Quo Stands
Stated simply, the evidence is overwhelming that post-metzitza infections are extremely rare. That is not to deny that there may have been a small number of individual cases that have not been reported or even detected; most jurisdictions do not legally require reporting, and it is surely possible that some cases have remained “below the radar screen.” And that is also not to belittle the seriousness of the issue, or the potential severity of an HSV-1 infection; even if only one child was infected through metzitza b’peh, that should be cause for communal attention and concern. But the Pediatrics’ authors’ efforts to portray metzitza b’peh-induced herpes as a common phenomenon is plainly wrong. There is no iceberg.
It is for this reason that contemporary Gedolei Yisroel – Torah giants like Rabbi Yosef Sholom Elyashiv, Rabbi Shmuel Halevi Wosner, Rabbi Nissim Karelitz and Rabbi Chaim Kanievsky – when asked to once again consider the practice of metzitza b’peh in light of the Pediatrics study and the other recent reported cases of post-metzitza HSV-1 infections, have remained firm in their halachic insistence that the mesorah must be maintained. These manhigei hador are of course exquisitely sensitive to even the slightest question of sakana (threat to life) and pikuach nefesh. Their love and concern for the well-being of every Jewish child know no bounds. At the same time, they also understand the immutability of halacha; and they have determined, based on the evidence, that any risk of metzitza b’peh causing infection is so minimal that it does not rise to the level of a halachically cognizable concern.
Accordingly, while kehilos whose mesorah allows or prefers that metzitza be done through an intervening instrument or with an absorbent gauze have no reason to deviate from their mesorah, other kehillos whose mesorah is to perform metzitza directly b’peh have no reason to deviate from theirs. Indeed, as the Gedolei Yisroel have reminded us, now when metzitza b’peh is under attack is a time when our resolve to preserve the mesorah must if anything be strengthened.
III. A Successful Shtadlanus Undertaking
The determination of the Gedolei Yisroel surely settles the matter internally within the Torah community. But to the secular medical establishment, the concept of daas Torah is foreign. Rabbis have their responsibilities; health officials, theirs.
Recognizing the substantial anti-metzitza b’peh sentiment in the medical community, and the very real possibility that there could now be a move to ban the practice, the Moetzes Gedolei HaTorah instructed Agudath Israel to undertake a major behind-the-scenes shtadlanus (advocacy) effort to preserve the right to practice metzitza b’peh free of government interference. The key to such an effort was, indeed, that it take place behind the scenes; the more the issue would be in the public eye, our rabbinic leaders felt, the more opposition we would likely encounter.
Meeting the Commissioner
On January 18, 2005, New York City Health Commissioner Thomas R. Frieden and top members of his staff convened a meeting in his downtown Manhattan office with representatives of the Orthodox Jewish community to discuss the issue of metzitza b’peh. The Orthodox representation, which was organized and led by New York City Councilman Simcha Felder with an assist by longstanding community activist Rabbi Yaakov Spitzer and myself, also included three distinguished rabbanim – Rabbi Yisroel Belsky, Rosh Yeshiva of Yeshiva Torah Vodaath; Rabbi Binyomin Landau, Tosher Dayan and representative of the Hisachdus Horabbonim (both Rabbi Belsky and Rabbi Landau are also expert mohalim); and Rabbi Noach Isaac Oelbaum, Rav of Congregation Nachlas Yitzchok – as well as two prominent doctors – Dr. Kenneth Glassberg, Director of the Division of Pediatric Urology at Columbia Presbyterian; and Dr. Alan Werzberger, a pediatrician who has served the Chassidic community in Kiryas Yoel for two decades, and an Assistant in Pediatrics at Columbia University’s College of Physicians and Surgeons.
The purpose of the meeting, Commissioner Frieden stated at the outset, was not to discuss the case of the individual mohel against whom the Health Department had obtained an injunction, but rather to begin a dialogue about the more general question of metzitza b’peh itself. The Commissioner was apparently hopeful that a review of the recent medical literature and scientific studies would persuade the community representatives to acknowledge the risk of direct oral suction and work within the community to do away with the practice.
We listened carefully to his presentation, and then asked him for an opportunity to offer our own perspective on the matter. The three rabbanim made it crystal clear that metzitza b’peh is regarded in many Orthodox circles as an integral part of the religious commandment of bris mila, and that any effort by a governmental body to prohibit the practice would be seen as an effort to interfere with bris mila itself. The two doctors, who between them had approximately 45 years of pediatric experience in communities where metzitza b’peh was routinely performed, reported that they had never once encountered a case of post-metzitza HSV-1 infection.
Our delegation further emphasized the strong religious liberty interest at stake, pointing out other contexts in which the law allows for a certain degree of medical risk in order to accommodate religious practice. For example, we noted, while the law in New York requires all children to be immunized against certain diseases before entering school, the law makes an exception for children whose parents refuse to inoculate them on religious grounds. Thus, despite the generally accepted medical consensus that immunizations help protect a child’s health and that of his classmates, society recognizes that even those weighty considerations must yield to the child’s parents’ right to raise the child in accordance with their religious beliefs. Certainly, the same principle should hold true, we argued, in the context of metzitza b’peh, where the level of medical risk is presumably far smaller than that associated with non-immunization.
Confronting the Possibility of a Ban
Toward the conclusion of the meeting, I asked Commissioner Frieden the bottom-line question that was on all of our minds: “What, if anything, is the Health Department thinking of doing about this?” He replied: “Right now, anything is on the table. Let’s see where our dialogue takes us.” We shuddered – for while we thought we had made a powerful presentation that had made an impression on the Commissioner and his staff, the “anything” that was on the table included the possibility that the Department might even seek to impose an outright ban on metzitza b’peh, as several prominent voices in the medical community had in fact been urging.
A few nervous weeks and phone calls later, our concern was allayed. On February 3, 2005, Councilman Felder and I again met with Commissioner Frieden and his staff and were assured that the Department would not seek to regulate metzitza b’peh. They were prepared to make this commitment, the Commissioner said, not because they regarded oral suction as a safe practice, but because they understood that it was widely seen in many Jewish communities as an essential part of the religious ritual.
As significant as the Commissioner’s commitment to Councilman Felder and me surely was, the Novominsker Rebbe, a”jyls, Rosh Agudas Yisroel, felt that it would be important to raise the issue directly with New York City Mayor Michael R. Bloomberg. Accordingly, on February 28, 2005, when Mr. Bloomberg invited the rabbinic and lay leadership of Agudath Israel to City Hall for an erev-Siyum Hashas Daf Yomi gathering, the Rebbe delivered an impassioned plea on behalf of metzitza b’peh, emphasizing the hallowed religious nature of the practice, and cautioning that any attempt by the city government to regulate it would be entirely unacceptable to the Orthodox community. The Mayor, who was joined at the meeting by many of his top commissioners and deputies, pledged in no uncertain terms that the city would never regulate metzitza b’peh or any other aspect of bris mila.
Objecting to Informed Consent
Our most serious concern was baruch Hashem behind us. Parents and mohalim in kehilos where metzitza b’peh was considered an integral part of bris mila would continue to have the legal right to perform the practice. But there remained other potential problems.
At our February 3 meeting, Commissioner Frieden asserted that the Department would find a way to engage in a “public education campaign” to inform the community of the risks associated with metzitza b’peh. He further told us that he was considering imposing a requirement of “informed consent,” whereby parents who want a mohel to perform metzitza b’peh would have to sign a statement acknowledging their understanding of the risk involved and their consent to its performance.
Councilman Felder and I objected to these ideas, especially the proposed “informed consent” mandate. Such a requirement, we told the Commissioner, would be extremely problematic, both legally and practically, and would also unjustly stigmatize all those committed to the practice of metzitza b’peh. As I subsequently elaborated in a five-page letter to Dr. Frieden, requiring informed consent for a practice that poses as remote a risk as metzitza b’peh would “represent a departure from existing law,” and would “place the Health Department in a constitutionally precarious position of entanglement with an inherently religious ritual.”
At our next meeting, on March 22, 2005, Commissioner Frieden assured Councilman Felder and me that the informed consent approach would not be pursued. Baruch Hashem, another potential minefield had been successfully avoided. All that remained was the Commissioner’s insistence that the Department would undertake a “public education campaign” to satisfy itself that the community was at least aware of its dim view of metzitza b’peh. Councilman Felder and I told Dr. Frieden that, in view of the tense atmosphere surrounding the controversy, any such campaign would be greeted in the community with skepticism or outright hostility. The Commissioner decided to put his public education plan on hold.
IV. Focusing on the Individual Mohel
As of the latter part of March 2005, therefore, we had succeeded in accomplishing the main objectives of our shtadlanus undertaking with the city. Both the Mayor and the Health Commissioner had pledged that they would not ban metzitza b’peh. The Commissioner had further pledged that there would be no requirement of informed consent. His public education plan, at least for the time being, had been shelved. Klal Yisroel’s broad interest in preserving its mesorah free of governmental interference had been successfully preserved.
There remained, however, the difficult matter of the city’s injunction against the mohel who had performed the November 2003 bris in Staten Island and the twins’ brissen eleven months later in Brooklyn. As noted above, the mohel is both an outstanding practitioner and a heroic figure who, at great personal sacrifice, has devoted his life to bringing Jewish children and adults into the covenant of Avraham Avinu. Having done so much for the klal, he surely deserved whatever the klal could do for him.
Some in the community further argued that the mohel’s individual problem was really a communal problem. Studies have shown that most adults have at least once in their lifetimes been active carriers of the HSV-1 virus, which usually manifests itself through “cold sores” in the mouth. When that happens, the body fights back by developing “antibodies” to the virus. The antibodies do not destroy the virus; rather, they render the virus dormant. The dormant virus may become reactivated at any time, however, and can be “shed” by the individual even without new cold sores or any other physical symptoms. Indeed, this was apparently the city’s theory of exactly what happened in the Staten Island and Brooklyn cases: the mohel, at the time of metzitza b’peh, happened just at that moment to be shedding the HSV-1 virus that had been dormant within his body, and in the process unwittingly infected the vulnerable infant children. And that is why, in the City’s view, the mohel must be prevented from doing metzitza b’peh in the future, lest he once again unwittingly shed the virus. But if so, and if one assumes that most mohalim are like most adults and are also capable of unwittingly shedding the virus at any time, then on what logical basis should any other mohel be permitted to perform metzitza b’peh?
Those who raised this argument felt, therefore, that all of the city’s assurances that there would be no regulation of metzitza b’peh were worthless. If the city would not allow this individual mohel to continue the practice, they reasoned, it would only be a matter of time before no mohel would be allowed to continue the practice.
There is some validity to this concern. In fact, many in the medical community do, indeed, contend that the mere possibility that a mohel might shed the HSV-1 virus when he does metzitza b’peh presents an unacceptable risk and justifies an outright ban on the practice. Even the Health Department itself was considering imposing such a ban before we began our series of meetings with Commissioner Frieden and his staff. So the concern that an individual mohel’s injunction might eventually be expanded to a community-wide ban is by no means trivial.
At the same time, however, the concern is by no means compelling. That is because medical studies have shown that some carriers of the herpes virus are more prone to shedding than others. Accordingly, the Health Department told us, while any mohel who has antibodies to the virus is at risk of shedding the virus asymptomatically and transmitting it through metzitza b’peh, the risk is substantially greater when the mohel has a history of having previously transmitted the virus. For this reason, while the Department was prepared to allow mohalim generally to continue doing metzitza b’peh, it was not prepared to allow the higher risk mohel whom they believed had transmitted HSV-1 in the past to continue doing metzitza b’peh in the future.
Indeed, there already existed precedent for this type of distinction. In 1998, the Health Department had dealt with the case of a prominent mohel who was suspected of having twice transmitted HSV-1 through metzitza b’peh, once at that time and once ten years earlier in 1988. The mohel, when confronted about the matter, decided voluntarily that he would henceforth no longer perform metzitza b’peh. The Department decided at that time that it would not pursue any additional steps to regulate the practice more generally. Although there were certain differences between that mohel’s case and the case of the mohel involved in the 2003 and 2004 brissen in Staten Island and Brooklyn, the Department’s handling of the earlier case did establish the principle that the general practice of metzitza b’peh would not be tied to the case of any individual mohel.
If the New York City authorities were prepared, based on their expert medical judgment, to distinguish between a mohel who has a suspected history of HSV-1 transmission and all others who do not, Agudath Israel’s view – based on discussions with our rabbinic leadership – was that it would be strategically prudent not to challenge that distinction. In the scenario of this case particularly, where the Health Department claimed that the mohel had infected no fewer than three children – one of whom died – we felt it would be shtadlanus folly of the highest order to reject the city’s willingness to draw a line between mohalim with a suspected history of transmission and those without.
Reason for Skepticism
That is not to say that the Health Department’s conclusion that the mohel was the one who had most likely transmitted the HSV-1 infections in the Staten Island and Brooklyn cases was necessarily correct, or that it should not have been contested. On the contrary, based on the mohel’s version of what took place in those cases, as noted in Part I of this essay, there was strong reason to believe that he was not the source of the infections. Indeed, in the early summer of 2005, the mohel received a hora’a from three prominent rabbanim that he was halachically permitted to continue doing metzitza b’peh (though not, obviously, in any jurisdiction where he was under civil injunction not to perform the practice). The hora’a was based on the mohel’s own testimony as well as the expert testimony of several infectious disease specialists, and reflected the rabbanim’s judgment that the mohel did not present a halachically cognizable risk of future transmission.
The rabbanim may not have been the only ones to reach this conclusion. On April 19, 2005, the New York State Health Department, in a letter from Executive Deputy Commissioner Dennis Whalen to Rabbi Yaakov Spitzer, rescinded its own previously issued injunction prohibiting the mohel from doing metzitza. It is true that Mr. Whalen’s letter does not explicitly state that the State Health Department concluded that the mohel did not pose a significant risk of future transmission; instead, it predicated the withdrawal of its injunction on a commitment by the Central Rabbinical Congress (Hisachdus Horabbonim) to establish a “Bris Mila Oversight Committee” that would work with the State Health Department to “jointly develop recommendations that could be used for all mohel practitioners.” (At the urging of the Moetzes Gedolei HaTorah and Nesius of Agudas Yisroel, Rabbi Spitzer arranged for Mr. Whalen to issue a subsequent letter clarifying that the State Health Department would have no direct role in any such “Oversight Committee,” but would merely “stand ready to serve in a consultative capacity to the CRC Committee.”) Still, one might fairly assume that the State Health Department would not have lifted its injunction against the mohel’s performance of metzitza had it remained seriously concerned that his resumption of the practice would pose any material risk.
There was thus considerable reason to be skeptical of the City Health Department’s conclusion that the mohel was the likely source of the HSV-1 infections in the Staten Island and Brooklyn cases and therefore an unacceptable risk of future transmission. Yet the bottom line remained that Commissioner Frieden and his staff felt differently than the rabbanim (and, presumably, the State Health Department). The City Health Department claimed it had thoroughly investigated the cases, and that all the clinical evidence pointed toward the mohel as the source of the infections.
Trying to Pry Open the Closed Door
The problem with this assertion is that the mohel and his representatives had no opportunity to meaningfully challenge it, since it was based on the City Health Department’s own closed-door investigation of the Staten Island and Brooklyn cases. On March 22, 2005, when Councilman Felder and I met for the third time with Commissioner Frieden, I gave the Commissioner a copy of a letter I had received the day before from the mohel’s attorney, complaining that he and his client were being denied access to the city’s investigation and evidence. In my own cover letter to Dr. Frieden, I noted that “there is … something very troubling about a mohel …having his fate summarily decided by a governmental body without even having an opportunity to see or comment on the evidence on which any such decision may be based.”
In that letter, and in follow-up correspondence on July 28 and August 3, I urged the Commissioner to give the mohel and his representatives access to all non-confidential information in its investigation file, and also to confidential medical records under appropriate confidentiality safeguards. This would enable the mohel to identify gaps in the city’s investigation, and introduce any new evidence regarding the facts. It would also enable his experts to review all the relevant medical facts and develop their own professional assessment, which might either confirm the Health Department’s judgment or contradict it. Either way, I wrote, “for the sake of fair play, for the sake of the Department’s communal credibility, for the sake of truth, [the mohel] and his experts should be allowed to have full access to the Department’s investigation materials.” In Agudath Israel’s view, this represented the most reasonable and promising avenue of shtadlanus to help the mohel in his effort to lift the city’s injunction.
Beating the Drums of War
Other askanim (community workers), most notably those identified with the Hisachdus Horabbonim, pursued a different approach. Concerned, as noted above, that the city would ultimately seek to use the case of the individual mohel as a basis for banning metzitza b’peh across the board, and perhaps even for regulating other aspects of bris mila, they argued that the Health Department had no business whatsoever getting involved in the case. Metzitza b’peh is purely a religious practice, they asserted; any general concerns about its safety or specific concerns about its role in the transmission of infection in individual cases must be left to rabbinic leaders, not to secular government. Under this approach, the only acceptable resolution of the case involving the mohel who had performed the Staten Island and Brooklyn brissen would be for the city to simply lift the injunction and let the religious authorities handle the matter on their own.
As might have been expected, Commissioner Frieden and his colleagues did not take favorably to this suggested approach. The law assigns to the Health Department broad responsibility over public health matters. In the health officials’ eyes, this was clearly such a matter; based on their reading of the evidence, a popular mohel had transmitted the HSV-1 virus to three infants and posed an unacceptable risk of transmitting the virus again in the future. To abdicate their role by turning over the case to the rabbis would be a dereliction of what they saw as their most basic responsibility. Accordingly, when settlement discussions between the parties foundered this past summer, the Department notified the mohel’s attorney that it planned to issue a final order on August 15 – the day after Tisha BeAv – permanently banning the mohel from performing metzitza b’peh in New York City.
Throughout the first half of 2005, those who equated the Health Department’s actions against the individual mohel with an attack against metzitza b’peh itself had engaged in a major public campaign within the Chareidi community to galvanize grassroots outrage against the Department. Now, with the Department’s formal notice of its intention to impose a permanent injunction against the mohel’s performance of metzitza b’peh, the campaign shifted into shrill, hyperbolic overdrive.
Ruby red posters appeared in Chareidi neighborhoods with screaming banner headlines – a sampling: “Kulanu L’ma’aracha”… “Tei’aseh Kol Ha’Gola Kimeduras Eish” … “Kasheh Hayom L’Yisroel K’yom Sereifas Beis Elokeinu” – calling for a massive demonstration in the Catskills on the afternoon of Tisha BeAv and a grassroots phone campaign to New York City’s 311 hotline to protest the city’s planned action. The posters declared, and articles in (primarily) the Yiddish-language press elaborated, that the steps being taken against the individual mohel were simply a prelude to a planned ban against the entire practice of metzitza b’peh.
On August 11, 2005 – four days before the permanent injunction was set to go into effect, and three days before the threatened mass demonstration in the Catskills – Mayor Bloomberg hosted a meeting at City Hall with a group of prominent Admorim, roshei yeshivos, rabbanim and askanim. The distinguished delegation pleaded with the Mayor, and with Commissioner Frieden (who was also present), to understand the centrality of metzitza b’peh to the practice of bris mila in many segments of the Orthodox community, and to refrain from interfering in any way with the practice. They further made the case that it should be the role of the rabbis, not the secular governmental authorities, to deal with individual mohalim who are suspected of having transmitted the HSV-1 virus.
The Mayor reiterated what he had told the rabbinic leadership of Agudath Israel months earlier: the city would not in any way regulate the practice of metzitza b’peh. (On this point, while the celebratory rhetoric in some of the Chareidi press incorrectly made it appear as if Mayor Bloomberg had broken new territory in pledging not to ban the practice – when in fact the pledge had already been made in late February at the erev Siyum Hashas gathering – it was surely helpful to have His Honor make the pledge again.) With respect to the individual mohel’s case, the Mayor agreed to hold off implementation of the permanent injunction to give the parties another opportunity to try to come up with an acceptable resolution. As Mr. Bloomberg stated on a radio program the next day:
We have two things here that are terribly important to everybody. One, we have an obligation to protect the health of everybody; and two, we have an obligation to make sure people can practice their religion the way they want to…. [Regarding the case of the individual mohel,] there’s a court order that prohibits what we think may or may not – we just don’t know yet – be dangerous, but we are forming a group and everybody’s participating, and we’re going to do a study and make sure that everybody is safe. At the same time, it is not the government’s business to tell people how to practice their religion.
The Tisha BeAv demonstration was called off, and the parties reconvened for further negotiation.
Finally, in September 2005, a deal was struck: The Hisachdus Horabbonim announced that it was investigating the case of the individual mohel and would issue a ruling on his status sometime after December 1. The mohel, in turn, sent a letter to the Hisachdus Horabbonim agreeing to refrain from performing metzitza b’peh in New York City during the pendency of the Hisachdus Horabbonim proceeding. Based on those commitments, the Health Department agreed to discontinue, without prejudice (more on this critical legalistic phrase in a moment), its injunctive proceeding against the mohel.
As might be imagined, this development was greeted in the community with great jubilation. Coincidentally or otherwise, 2005 happened to be an election year in New York City, and Mayor Bloomberg was running for reelection. It was time for the community to show its hakaras hatov. The Hisachdus Horabbonim issued a formal endorsement of his candidacy. A few days before the election, a major pro-Bloomberg rally was held in Williamsburg, with thousands lining the streets to express their support for the Mayor in what was described in The New York Times as “by far the largest rally of [the] campaign.” The Mayor was handily reelected, winning by an overwhelming margin in Chareidi communities throughout the city.
All, it appeared was well, at least on the surface. A closer look, however, revealed that rumors of the Health Department’s abdication to the rabbis may in fact have been greatly exaggerated.
When a legal proceeding is dismissed “without prejudice,” it means that the party who initially started the proceeding retains the right to seek to reinstitute the proceeding at a later date under appropriate circumstances. When the Health Department agreed to discontinue its injunctive proceeding against the mohel based on the commitment of the Hisachdus Horabbonim to handle the matter, it did so “without prejudice,” thereby preserving its right to go back to court and reinstitute its proceeding in the event it would not be satisfied that the rabbinic tribunal had handled the matter properly. Far from a total abdication, therefore, what the Department had agreed to do was simply to step aside temporarily and see if the rabbis would handle the case responsibly.
A closer reading of Mayor Bloomberg’s own statement following his August 11 meeting with the rabbanim and askanim should also have disabused anyone of the notion that the city would totally relinquish its authority over health issues surrounding metzitza b’peh. While the Mayor, to his great credit, asserted that “it is not the government’s business to tell people how to practice their religion,” he also emphasized that “we have an obligation to protect the health of everybody” – the clear implication being that the city would not simply step aside and leave the matter to the rabbis.
V. An Open Letter and a Closed Mind
It should not have come as a surprise, therefore, when, on December 13, 2005, the Health Department reentered the public fray. The Department issued three separate documents, each troubling in its own right.
The first document is “An Open Letter to the Jewish Community from the New York City Health Commissioner,” in which Dr. Frieden made public “the Department’s view [that] there is no reasonable doubt that the practice of metzitza b’peh… has infected several infants in New York City with the herpes virus, including one child who died and another who has evidence of brain damage.” The “Open Letter” goes on to describe seven reported cases of post-circumcision HSV-1 infection in New York City over the past 17 years: one in 1988, one in 1998 (both of which involved “Mohel A,” who agreed, as noted above, to stop performing metzitza b’peh), the 2003 Staten Island case and the 2004 Brooklyn twins’ cases (both involving “Mohel B,” whom the Open Letter definitively asserts was “the source of the cases”), and two additional cases reported in 2005 that “were also consistent with infection from metzitza b’peh.”
The Open Letter forthrightly concedes that “severe illness associated with this practice may be rare.” It also acknowledges that “some religious authorities consider metzitza b’peh the only acceptable way to draw blood away from the circumcision cut.” Nonetheless, “because there is no proven way to reduce the risk of herpes infection posed by circumcision which includes metzitza b’peh, the Health Department recommends that infants being circumcised should not undergo metzitza b’peh.” The Open Letter then concludes:
The Department has reviewed all of the evidence and there exists no reasonable doubt that metzitza b’peh can and has caused neonatal herpes infection. We have always maintained that it is our preference for the religious community to address these issues itself as long as the public’s health is protected. While some medical professionals and others in the Jewish community have called on the Department to completely ban metzitza b’peh at this time, it is our opinion that educating the community through public health information and warnings is a more realistic approach.
The second document published by the Health Department on December 13 is a self-described “fact sheet,” entitled “Before the Bris: How to Protect Your Infant Against Herpes Virus Infection Caused by Metzitza B’peh,” and designed to be distributed in hospitals to Jewish parents of newborn infant sons. The document describes the practice of metzitza b’peh, urges parents to speak to the mohel and their doctor about the practice, and reiterates the Department’s own recommendation that the practice not be performed. Interestingly, the document concedes that “a mohel who takes antiviral medication may reduce the risk of spreading herpes virus.” Still, “there is no evidence that taking medication eliminates this risk” – and anything less than total elimination of the risk, in the Department’s view, is unacceptable.
The third December 13 document, entitled “Health Alert #46,” is in the form of a “Dear Colleagues” letter from the Department to health care practitioners across New York City. After reiterating the Department’s view regarding metzitza b’peh, the Health Alert advises doctors that they should hospitalize “infants in the first 6-8 weeks of life suspected of having herpes infections,” and report all suspected cases of post-circumcision neonatal herpes to the Health Department. (While the Health Alert would require reporting only in cases of suspected herpes following circumcision, the Department subsequently proposed a new regulation requiring reporting in all cases of neonatal herpes.)
A Matter of Timing
With this flurry of documents, the Health Department made it absolutely clear that it had no intention of simply sitting on the sidelines of the metzitza b’peh debate. Asked by the New York Jewish Week why the Department had published these documents at this time, Commissioner Frieden indicated that the Department was troubled by the Hisachdus Horabbonim’s delay in issuing a ruling in the case of the individual mohel who did the brissen in the Staten Island and Brooklyn cases. “Rather than let that continue indefinitely,” the Commissioner stated, “we felt it was important to make clear to the public our own conclusion and position.”
In Commissioner Frieden’s mind, obviously, the time had finally arrived to go forward with the “public education” campaign he had mentioned to Councilman Felder and me several months earlier. (Some cynics might suggest that the fact that the election had already taken place might have had something to do with the timing of the Department’s actions. Sometimes cynics are right.)
Agudath Israel’s Reaction
Agudath Israel learned of the Health Department’s plan to issue its “Open Letter” and “Before the Bris” fact sheet only hours before they were released; we had no opportunity to try to prevent or postpone their publication. We did, however, upon consultation with our rabbinic leadership, issue a public statement shortly following their publication:
While the New York City Health Department honored its commitment not to prohibit or otherwise regulate the practice of metzitza b’peh, Agudath Israel of America is deeply troubled by the Department’s unprecedented and highly selective use of its bully pulpit authority to publicly attack a millennia-old practice that many Orthodox Jewish communities and rabbinical authorities regard as an integral and indispensable part of the ritual obligation of bris mila….
The testimony of health professionals who serve the communities where metzitza b’peh is commonly practiced is that any incidence of neonatal herpes following metzitza b’peh is at worst extremely rare, and that any incidence of serious illness resulting therefrom is rarer still. The Health Department’s issuance of its public warning in the face of such testimony is a highly objectionable use of Departmental authority.
In addition, Agudath Israel worked behind the scenes with Health Department officials to clarify a particularly troubling point in the December 13 “Health Alert.” The plain language of the Health Alert appeared to label any child who developed a post-circumcision fever as a “suspected case of herpes,” thereby requiring hospitalization and reporting, even if the fever was not accompanied by any lesions on the child’s body or other tangible evidence of herpes. Since fever in an infant is a relatively common phenomenon, and could be traceable to any of many possible causes that have nothing to do with herpes, the Health Alert’s designation of post-circumcision fever as a sufficient basis for suspecting herpes was entirely inappropriate. When I raised this concern with Department officials, they quickly retracted; what the Health Alert meant to say, Deputy Health Commissioner Isaac Weisfuse wrote in response to my inquiry, was that the hospitalization and reporting requirements triggered by a “suspected case of herpes” would apply only after a doctor had performed certain preliminary tests and arrived at a “working diagnosis” of herpes.
A Demanding and Demeaning Meeting
If the Health Department’s December 13 publications prompted a formal objection and a behind-the-scenes shtadlanus effort by Agudath Israel, it prompted a virtual declaration of war by those who felt the city had reneged on its purported pre-election deal to leave metzitza b’peh to the exclusive domain of the religious authorities. New hyperbolic posters were prepared, new incendiary newspaper ads taken out new calls to prepare for battle issued – the Mayor and the Commissioner had double-crossed the community, and they weren’t going to get away with it!
On December 30, a group of rabbanim and askanim met with Commissioner Frieden. By all accounts, the meeting did not go well. The New York Times reported that the community representatives had asked the Commissioner to “stand down.” In addition, according to The Times, the delegation made three demands: “that the city cease its educational drive, that it stop investigating possible cases, and that it stop investigating rabbis it suspects of transmitting herpes – common in the mouths of most adults – to infants during metzitza b’peh.” The Commissioner rejected those demands.
The meeting ended acrimoniously when, in response to a suggestion by the rabbanim and askanim that the City Health Department cede its authority over the issue to the State Health Department, Dr. Frieden replied that this suggestion was, in the words of the Times, “akin to his asking them to cede their religious authority to Catholics.” The Commissioner apologized for his offensive comment, but the meeting was, for all intents and purposes, over.
A delegation of rabbanim and askanim subsequently met with Mayor Bloomberg in Gracie Mansion on January 5, 2006. The Times reported that the parties engaged in what one of the Mayor’s aides described as “a frank exchange” – which is a diplomatic way of saying that the meeting had not been an easy one. Nonetheless, one of the askanim is quoted as saying that the Mayor had “calmed the rabbis” by calling for a meeting of doctors representing “both sides” to see whether they could find “common ground.”
As of the date of this writing (mid-March 2006), that meeting of doctors has yet to take place, despite the Department’s efforts to schedule it. Nor, as of this date, has the Hisachdus Horabbonim handed down its ruling in the case of the mohel who performed the Staten Island and Brooklyn brissen.
By now, unfortunately, the battle over metzitza b’peh has exploded on the public scene and captured both the attention and imagination of the general media. As the Moetzes Gedolei HaTorah had warned from the outset, publicity has proven extremely harmful to the cause. They correctly understood that the imagery of oral suction of blood from the circumcision wound would never elicit any sympathy or support in the public arena, and that the only way to possibly win a public relations battle over this issue would be to avoid it. That is no longer feasible.
Following are excerpts from just two of the many articles and opinion pieces that appeared in the mainstream media following the most recent meetings described above. The first is from a column by Joyce Purnick that appeared on January 9, 2006 in The New York Times; the second, from a January 12 column by Niall Stanage in The New York Observer.
Orthodox leaders are so infuriated by the city’s educational efforts that some threatened to protest at the mayor’s inauguration wearing yellow Stars of David. In other words, some Jewish New Yorkers were ready to display a symbol of Nazi persecution at City Hall because the health department issued advice to parents about a procedure that can kill babies.
The would-be protesters restrained themselves, a welcome decision to those who might have been troubled to see anyone in 21st-century New York equating a letter from public health professionals to the horrors of the Holocaust.
That anyone even thought of invoking – and demeaning – the Holocaust underscores something we suspect Mr. Bloomberg has figured out by now: There’s no winning the really tough ones, so he may as well follow his own advice. Mayors, he advised in a speech last September, “solve problems not by taking both sides of big issues, but by deciding what’s right and then going after it.”
* * *
Another important detail of the dispute has not yet generated the outrage that it should.
The Times reported that Orthodox leaders at a recent meeting had made four demands of city health authorities. One was that the commissioner should resign. The second was that the city should stop its current attempts to educate the Orthodox community about the dangers of metzitza b’peh. The third was that it should stop investigating possible cases of herpes. And the fourth was that it should stop investigating any mohel suspected of transmitting the disease.
There, in a nutshell, was a typical example of the kind of thinking that unites religious fanatics of all persuasions. They rail against scrutiny, inquiry, even rational thought itself. Their message: Don’t ask questions. We are right because G-d says so.
No civil authority should bow before such nutty fundamentalism. Nor should it try to broker a compromise.
‘This is one of the most delicate issues I’ve ever had to deal with,’ Dr. Frieden mused last week.
No, it isn’t, Dr. Frieden. Zealots are putting the lives of babies in danger. So stop them.
* * *
It goes without saying that this type of editorializing in the media is extremely harmful to the cause of metzitza b’peh. But the damage extends far beyond that relatively narrow issue. The flap over metzitza b’peh has revived talk in certain circles that bris mila itself – which is, after all, a surgical procedure – should come under governmental regulation. It has given ammunition to the notorious “No Circ” movement, whose goal is to outlaw all circumcision; it has created a difficult problem for kiruv workers who face bewildered questions from searching Jews who find the practice of metzitza b’peh and the demands of its supporters incomprehensible; and it has even, in at least one case of which I am aware, caused parents from a non-observant background to forgo bris mila for their newborn child. Add to all that the more general damage to the Torah community’s image through depictions of Chareidim as “religious fanatics” who practice “nutty fundamentalism,” and one can begin to understand the magnitude of the negative fallout caused by the strident public campaign to protect metzitza b’peh.
How tragically sad and ironic (though, with all due respect, foreseeable and avoidable): a confrontational strategy designed to ensure that the right to perform metzitza b’peh is preserved has in fact led to new public pressure to have the practice banned, as well as various other potentially serious problems. Milchama (battle) is indeed one of the tactics Yaakov Avinu taught us must be employed from time to time in dealing with Eisav (along with doron and tefilla), but war is often more a matter of effective strategy than brute might.
VI. Steering Back on Course
So where, after all this (and much more that cannot be reported because of confidentiality and space considerations), do we go from here? Is there a way to stop the escalating spiral of confrontation and achieve a satisfactory, if uneasy, resolution of the matter? I believe the following steps, with the support and guidance of Gedolei Yisroel, would be helpful:
1. Tone down the rhetoric. We should not portray the New York City Health Department as the second coming of the KGB, compare the Department’s treatment of a mohel it suspects of having infected babies through metzitza b’peh to flushing the Koran down the toilet, or brand any public official an anti-Semite or self-hating Jew. This type of hyperbole is counterproductive in the extreme.
2. Consolidate our accomplishments. While the Department has publicly issued its recommendation against metzitza b’peh, and while we may deem that action extremely objectionable, we must not forget that the Mayor and the Commissioner have both given their solemn commitment to not regulate the practice. We should recognize those commitments, not continually cast aspersions on them. If we don’t know how to take “yes” for an answer, and if we engage in warlike conduct that only inspires the media to call for an outright ban on the practice, we may one day find that our warnings about the city’s “true” intentions could become a self-fulfilling prophecy.
3. Find ways to work with governmental health officials. For better or for worse, it is clear as a matter of law that entities like the New York City Health Department do have legal jurisdiction over matters pertaining to public health. The fact that a public health issue may intersect with religious practice does not remove the issue from the domain of governmental authority. True, there are limits to government’s ability to regulate such matters, but we are far more likely to achieve an optimal degree of religious autonomy by working amicably with governmental officials than by challenging their authority and antagonizing them at every step.
4. Develop the data and scientific studies that support metzitza b’peh. At this point, the medical literature is all one-sided; it concludes, as the New York City Health Department did, that metzitza b’peh presents an unacceptable risk of herpes transmission. Various questions have been raised, however, both by pediatricians serving the community and infectious disease specialists, about the scientific soundness of this medical consensus. Unfortunately, though, these questions have thus far been posed exclusively in Chareidi newspapers and other outlets that have little standing in the broader scientific community. If we are to be successful in eventually refuting the current consensus, even if only to demonstrate how exceedingly rare is the incidence of post-metzitza b’peh infection, it is incumbent upon our credentialed medical researchers to develop the data and scientific studies to prove our point.
5. Explore meaningful risk reduction measures. As many metzitza b’peh advocates have pointed out, the evidence linking the practice to HSV-1 infections is far from definitive. At the same time, the overwhelming majority of the medical community, including supporters of metzitza b’peh, acknowledge at least the possibility that an infection could be transmitted through the practice, even from a mohel who displays no physical symptoms of the herpes virus. But, at the same time, many in the medical community, including opponents of metzitza b’peh, acknowledge that there are certain minimally intrusive steps that could significantly reduce whatever risk of transmission there may be. As a tzibbur, we should be proactively considering such steps, which would substantially address the medical community’s concerns without in any way compromising our mesorah.
The confrontation over metzitza b’peh is one of the most difficult challenges we as a Torah community have ever had to face. May Hashem grant us the wisdom to confront it wisely, the strength to confront it powerfully, the chein to confront it successfully, and the courage to confront it honestly.
Chaim Dovid Zwiebel is Executive Vice President for Government and Public Affairs for Agudath Israel of America.