My colleague Yaakov Roth passed along a brief his firm filed in the case challenging New York City’s new regulation on a circumcision ritual called metzitzah b’peh.
MBP involves the use of oral suction by the mohel (the individual who performs the circumcision) to draw blood from the wound, and many prominent rabbinic authorities maintain that MBP is the proper, or even the only acceptable, way to complete the circumcision under Jewish law. MBP has been performed safely for millennia.
New York City’s proposed regulation would require the mohelim (Rabbis who perform circumcisions) to provide a warning to the families, and obtain informed consent.
Yet, under a new regulation, the Department will force mohelim to convey the Department’s “advi[ce]” that MBP, a religiously mandated ritual practice, “should not be performed,” because it allegedly “exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.” The parent would then be required to record his or her consent to the procedure. This regulation tramples on constitutional rights, including those of the plaintiffs here, in two ways.
This case raises some interesting religious liberties issue, but I think their stronger argument concerns compelled speech. The regulation would force the mohels–who are not engaged in a commercial transaction, and are not licensed professionals–to communicate such a message during an important religious ritual.
Although purely factual and uncontroversial disclosures may permissibly be compelled in the context of a commercial transaction or exercise of a licensed profession, it would be a novel and substantial offense against the First Amendment to require such warnings in the context of a religious ritual. In any event, the message compelled by the Department’s new regulation fails the minimal requirements that courts have imposed upon disclosures even in such less protected settings—namely, that they be “purely factual” and “uncontroversial.” The message is not a fact at all, but rather a piece of advice—that MBP “should not be performed” because its purported health risks outweigh, in the Department’s view, its religious necessity. And the alleged risks are hardly “uncontroversial.” To the contrary, the Department’s concerns are premised on limited study, dubious assumptions, and tiny sample sizes—and remain actively disputed by doctors.
This argument has some salience in light of recent laws requiring that sonograms be performed prior to abortions, and that certain information must be provided to people who seek an abortion.
The brief addresses this issue in the context of pregnancy counseling centers:
In a series of recent cases, every court to consider the question held that strict scrutiny applied to municipal regulations that sought to require pregnancy counseling centers—including centers opposed to abortion on moral grounds—to post signs indicating that they did not provide abortion services. See Evergreen Ass’n, 801 F. Supp. 2d 197; O’Brien v. Mayor & City Council of Balt., 768 F. Supp. 2d 804 (D. Md. 2011), aff’d, 683 F.3d 539 (4th Cir. 2012); Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011), aff’d, 683 F.3d 591 (4th Cir. 2012). 2 These courts reasoned that the pregnancy centers were providing “free” services “in furtherance of a religious belief,” not acting out of economic interest, and therefore that their speech could not be characterized as commercial in nature. Evergreen Ass’n, 801 F. Supp. 2d at 204–206; O’Brien, 768 F. Supp. 2d at 813–14; Centro Tepeyac, 779 F. Supp. 2d at 463–64.
Interesting case to keep an eye on.