Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene

Citations: 763 F.3d 183; 2014 WL 3973156; 2014 U.S. App. LEXIS 15726Docket: No. 13-107-cv

Court: Court of Appeals for the Second Circuit; August 15, 2014; Federal Appellate Court

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In Judaism, the 'bris milah' involves ritual circumcision of infants, signifying a covenant with God. Some Orthodox Jewish groups perform 'metzitah b’peh,' a direct oral suction of the circumcision wound, which has been deemed a health risk for spreading herpes simplex virus (HSV) to infants. The New York City Department of Health initiated an educational campaign about these risks and, finding it insufficient, enacted Regulation 181.21 in 2012. This regulation requires parental written consent for metzitah b’peh, including a warning against the practice.

Three organizations and mohelim challenging the Regulation argue it violates the First Amendment by compelling speech and infringing on their religious rights. The district court denied their request for a preliminary injunction, ruling that the Regulation does not compel speech and is a neutral, generally applicable law subject to rational basis review. However, the reviewing court disagrees, stating that the Regulation specifically targets a religious practice and is not generally applicable, as it addresses a fraction of HSV cases while ignoring secular practices associated with a higher infection rate. The court vacates the district court's order and remands the case for further consideration under strict scrutiny, emphasizing the importance of the plaintiffs' religious freedom and the public health interests at stake, while refraining from determining whether the plaintiffs meet this standard.

Jewish law mandates the circumcision of male infants on the eighth day after birth, a practice known as bris milah, stemming from a covenant between God and Abraham. A critical component of this ritual is metzitzah, where suction draws blood from the circumcision site, traditionally performed by direct oral suction (metzitzah b’peh, or MBP) among certain Hasidic groups. Plaintiffs argue that some religious authorities assert MBP is the only acceptable method under Jewish law. Mohelim, who are trained practitioners of bris milah, implement safety measures during MBP, including not performing the ritual if symptomatic of herpes simplex virus (HSV) infection and minimizing oral contact with the wound. 

HSV is prevalent among American adults but can be severe for newborns due to their underdeveloped immune systems, with approximately 20% of infected infants dying and survivors often suffering brain damage. Neonatal HSV infections are rare, with about 15 cases annually in New York City out of 125,000 live births. Most infants acquire HSV from their mothers during delivery (85%), particularly if the mother is infected late in pregnancy. Maternal antibodies typically protect newborns, but late maternal infection may result in insufficient antibody transfer, increasing the risk of infection during birth.

MBP (metzitzah b’peh) may account for 10% of herpes simplex virus (HSV) infections in infants post-birth. There is disagreement regarding whether MBP has actually caused HSV infections in infants; however, evidence suggests that HSV transmission through this practice is biologically plausible. Five infectious disease experts and Dr. Thomas Farley, the Department's Commissioner, affirm that direct oral suction increases infants' risk of HSV infection, a risk deemed incontrovertible. Dr. Anna Wald, involved in drafting CDC guidelines on HSV, describes the evidence linking oral suction to neonatal infections as strong and consistent. Several medical organizations, acting as amici curiae, assert that infectious diseases, including HSV, can be transmitted through MBP, and emphasize the elevated risk for neonates. The Department published a study in the MMWR, identifying 11 confirmed cases of neonatal herpes linked to circumcisions involving direct oral suction from 2000 to 2011, including two fatalities. The study indicated that the infection rate following direct oral suction was one in 4,098, significantly higher than for those who did not undergo the procedure. While plaintiffs do not dispute the medical consensus on the risks of MBP, they argue that the Department has not provided DNA evidence linking specific cases of HSV infection to MBP and challenge the statistical correlation between the two, particularly critiquing the MMWR Study’s conclusions.

Dr. Daniel Berman, the plaintiffs' primary medical expert, criticized the MMWR Study, arguing that it lacks sufficient evidence to establish a direct link between metzitzah b'peh (MBP) and herpes simplex virus (HSV) transmission. He contended that the study fails to adequately exclude alternative sources of HSV transmission in the 11 cases it examined. Furthermore, Berman claimed that the study's statistical analysis is flawed due to an underestimation of the number of infants undergoing MBP in New York City, which skews the infection rate calculations. A supporting affidavit suggested that correcting this flaw negates the study’s statistically significant findings linking MBP to HSV infections.

Before enacting the Regulation, the Department took several educational initiatives to inform the public about the risks associated with MBP. Starting in 2005, Department officials engaged with Jewish community leaders to address HSV infection concerns related to oral suction during circumcision. In August 2005, then-Mayor Bloomberg and then-Commissioner Frieden met with prominent rabbis to discuss the Department's investigation into these issues. In December 2005, the Department distributed an Open Letter to the Jewish Community, asserting that MBP had led to HSV infections, including a fatal case, and advised against the practice. They also released a fact sheet outlining protective measures against herpes infection and issued a health alert to physicians through their Health Alert Network.

In parallel, the New York State Department of Health attempted in 2006 to establish a regulatory protocol addressing the risk of HSV transmission through MBP. This proposed protocol would have mandated testing for mohelim (circumcisers) if an infant they circumcised contracted HSV within a specified timeframe, requiring the mohel to stop performing MBP and undergo serological testing if infected.

If a mohel is found to have a virus with DNA identical to that of a virus from an infant, he will be permanently banned from performing metzitzah b’peh (MBP). If he cannot be definitively ruled out as a source, he may continue performing MBP only if he adheres to a regimen of antiviral prophylactic medication. Despite support from 57 New York counties and 28 rabbis, New York City’s Department of Health and Mental Hygiene rejected the state’s protocol due to unproven effectiveness in preventing HSV transmission during MBP. Consequently, the state has abandoned this protocol. In June 2012, the Department issued a statement on the risks of HSV transmission during MBP, emphasizing that circumcision should occur in sterile conditions and strongly advising against direct oral suctioning of the circumcision wound. The Department claims that its educational initiatives have reached a significant portion of the Orthodox community but acknowledges ongoing health risks due to the continuation of MBP practices. Additionally, there are reports of parents unaware that direct oral suction would be performed on their infants during circumcision. Following the realization that educational efforts were insufficient, the Department proposed a regulation in June 2012, which was adopted unanimously by New York City’s Board of Health on September 13, 2012. This regulation, Section 181.21, mandates that oral suction during circumcision can only occur with signed consent from a parent or guardian, using a specific consent form that warns of the risks associated with the procedure.

The Regulation mandates that individuals performing circumcisions provide parents or guardians with a signed consent form while retaining the original for one year. It specifically aims to regulate the religious practice of metzitzah b’peh (MBP) and does not pertain to other circumcision practices. The Regulation's basis and purpose explicitly state its focus on metzitzah b’peh, and the Department’s Deputy Commissioner characterized it as regulating a part of a religious procedure. The City acknowledged that the Regulation solely applies to MBP, which is the only conduct it addresses.

In response to the Regulation, plaintiffs filed a lawsuit in the Southern District of New York seeking declaratory and injunctive relief, arguing that compliance with 181.21 infringes on their First Amendment rights to free speech and free exercise, as well as their rights under New York law. The district court denied their request for a preliminary injunction on January 10, 2013, concluding that the plaintiffs did not demonstrate a likelihood of success on their free exercise claim. The court categorized the Regulation as a neutral law subject to rational basis review, emphasizing the legitimate government interests of protecting children's health and ensuring informed parental decision-making. It found no discriminatory intent against religion or Judaism and deemed the Regulation appropriately aligned with its secular objectives.

The plaintiffs appealed the denial of the preliminary injunction, which is reviewed for abuse of discretion. To obtain a preliminary injunction, plaintiffs must show irreparable harm and either a likelihood of success on the merits or significant questions regarding the merits alongside a favorable balance of hardships.

A preliminary injunction affecting government action in the public interest requires the moving party to meet a higher likelihood-of-success standard and demonstrate that public interest favors the injunction. The Free Exercise Clause of the First Amendment protects the right to believe and practice religion without government interference, prohibiting regulation of religious beliefs, compelling affirmation, punishing perceived false doctrines, imposing disabilities based on religious views, or involving the government in religious disputes. The Clause safeguards both belief and the performance of religious acts. However, it does not exempt individuals from complying with valid, neutral laws of general applicability, which are reviewed under rational basis scrutiny. Laws that burden religious conduct and are not neutral or generally applicable face strict scrutiny. The district court determined that Regulation 181.21 was neutral and generally applicable, but this conclusion is contested; it is argued that the Regulation fails both criteria, necessitating heightened scrutiny and rendering the district court's ruling a legal error that should be vacated.

A law is deemed non-neutral if it specifically targets a religious practice, as established by the Supreme Court. To assess neutrality, one must first examine the statute’s text, ensuring it does not discriminate on its face. However, facial neutrality alone is insufficient; laws that specifically address religious conduct require strict scrutiny. In the case of the ordinances discussed in *Lukumi*, the regulation of animal slaughter was not neutral, as it aimed to restrict religious practices while permitting secular ones. The New York City Health Code Regulation 181.21 is not neutral because it explicitly singles out religious behavior associated with a subset of Orthodox Jews, thereby necessitating heightened scrutiny.

The Regulation, titled "Consent for direct oral suction as part of a circumcision," targets practices uniquely associated with the bris milah, a religious ritual. It specifically governs the actions of a mohel performing metzitzah b’peh, demonstrating a clear focus on religious conduct. If the Department had framed the regulation to require consent for metzitzah b’peh, it would undoubtedly invoke strict scrutiny, similar to hypothetical statutes mentioned in *Smith*. The Regulation's admission that it aims to regulate MBP indicates that it cannot evade strict scrutiny by omitting the term from its text. Ultimately, even if the Regulation's facial neutrality is debatable, its operational impact reveals a lack of neutrality, as assessed in practical terms, confirming the necessity of heightened scrutiny.

Section 181.21 is deemed non-neutral as it specifically regulates the religious practice of metzitzah b’peh, which the regulation was designed to address. This is similar to the ordinances in Lukumi, where the Court found that regulations targeting specific religious rituals are not neutral. The Department's acknowledgment that metzitzah b’peh "prompted" the regulation and is the "only presently known conduct" it covers reinforces this view. Unlike the neutral law upheld in Smith, which applied broadly to both secular and religious uses (such as the prohibition of peyote regardless of purpose), Section 181.21 does not share this neutrality. The cases cited in Smith also involved laws applicable to both secular and religious conduct, illustrating a consistent judicial stance that does not exempt religious practices from generally applicable laws that are neutral. Thus, Section 181.21's targeted nature in regulating a specific religious practice sets it apart from the neutral statutes discussed in Smith and highlights its non-neutrality in terms of free exercise rights.

Child labor prohibitions, Sunday-closing laws, mandatory military service, and tax collection apply broadly and do not target specific religious groups. In contrast, Regulation 181.21 specifically regulates certain religious conduct, akin to the non-neutral laws in *Lukumi*, which targeted a particular religious group by prohibiting ritual animal killing. The *Lukumi* Court found such laws non-neutral as they primarily burdened a disfavored religious group. Similarly, 181.21 imposes burdens exclusively on a specific subset of a particular religious group.

While the *Smith* decision established that general laws should not be subject to strict scrutiny based on religious grounds to avoid anarchy, it is not applicable here. The plaintiffs are not seeking an exemption from a generally valid law; they challenge a law that intentionally targets religious conduct. Although 181.21 is not invalid solely for being directed at religious activities, such targeted regulation necessitates heightened scrutiny rather than rational basis review, requiring it to be justified by a compelling interest and narrowly tailored.

Additionally, while not essential to the ruling, there are concerns about whether 181.21 is a generally applicable law. The general applicability principle prevents selective burdens on conduct motivated by religious belief, ensuring religious observers are treated equally and protecting against laws that target religiously motivated conduct for governmental interests.

Laws that burden religious practices must be scrutinized for selectivity, particularly if they are underinclusive, meaning they regulate religious conduct while neglecting comparable secular activities. In this case, the Regulation 181.21 applies only to a small fraction of neonatal HSV infection cases linked to religious practices, while failing to address nonreligious conduct that poses similar risks. The record lacks sufficient justification for this selective regulation, raising questions about the Department's rationale for focusing primarily on metzitzah b’peh. The Department claims its intent is to protect infant health, but the evidence does not convincingly support the adequacy of its alternative measures to prevent infection from other sources. Consequently, the plaintiffs have established grounds for strict scrutiny, as the Regulation does not appear to be generally applicable. Thus, it warrants rigorous examination, regardless of whether the law arises from animus or other motivations. However, this determination does not imply that the Regulation is constitutionally flawed, as strict scrutiny may still allow for its validity under certain conditions.

The legal document addresses the substantial interests asserted by the Department regarding the regulation of MBP (Mouth-to-Body Practices) and acknowledges that these interests may be compelling. The chosen means to address these interests are seen as appropriately tailored, despite being intrusive on a longstanding religious ritual. The court refrains from determining whether the plaintiffs have demonstrated a likelihood of success on the merits, instead allowing the district court discretion to permit additional discovery before conducting an evidentiary hearing on the current motion. The district court may also consider consolidating this hearing with the trial on the merits for judicial efficiency.

The judgment of the district court is vacated, and the case is remanded for further proceedings. The plaintiffs' request for a temporary stay of enforcement is denied. The court affirms that the regulation must meet strict scrutiny under the Free Exercise Clause, thus avoiding the need to address the plaintiffs' free speech argument or their claim regarding the New York State Constitution's Free Exercise Clause. The document outlines two levels of scrutiny: strict scrutiny, requiring a compelling governmental interest and narrow tailoring, and rational basis review, which presumes legislation valid if rationally related to a legitimate state interest. 

Additionally, it mentions the prevalence of HSV-1, the type of herpes in question, among adults in the U.S. and New York City. The Department argues that evidence necessary to establish the likelihood of transmission via MBP is hard to obtain and that testing would require cooperation from individuals suspected of being sources of infection. An affidavit from Dr. Brenda Breuer indicates that the referenced study does not adequately account for the potential for transmission from hospital sources.

The record includes affidavits from the Department's experts asserting that the MMWR Study effectively considers alternative transmission routes and demonstrates a causal relationship between MBP and HSV infection. The regulation 181.21, titled "Consent for direct oral suction as part of a circumcision," stipulates that direct oral suction involves contact between the mouth of the person performing the circumcision and the infant’s circumcised penis. Written consent from a parent or legal guardian is mandatory before performing this procedure on infants under one year old, using a specific consent form provided by the Department. This form must include the infant's birth date, parents' names, the circumcision provider's name, and a warning regarding the risks of herpes simplex virus infection associated with direct oral suction, which can lead to severe health complications. The provider must retain the signed consent form for one year and provide a copy to the parent or guardian. The Department clarifies that regulation 181.21 does not prohibit direct oral suction but instead requires consent, raising questions about its compliance with strict scrutiny standards. The passage also references a Supreme Court case discussing the constitutionality of burdens on religious practices, noting that Section 181.21 is similar to a tax that specifically targets religious conduct rather than a general tax. The Department highlights that most neonatal HSV cases arise from maternal transmission during the last trimester.