Last year in Pittsburgh, Rabbi Mordechai Rosenberg, a mohel (the Rabbi who performs the Jewish ritual circumcision, known as a bris) accidentally severed a newborn boy’s penis. Thankfully, the boy received successful surgery, and it was reattached. The parents filed suit in Philadelphia (I suspect they get a better jury pool, and higher jury verdict there). I have no thoughts on the merits of that lawsuit.
The more interesting question from my perspective is one raised by the family’s lawyer, who suggested that the mohel should be regulated.
Llewellyn handles cases involving injury during circumcision – injury brought on by both doctors in the hospital and mohels in religious ceremonies.
“Your average pediatric urologist probably spends about 20 percent of his or her time repairing children who have been circumcised,” Llewellyn says.
According to the American Academy of Pediatrics, one in every 500 newborn boys experience significant acute complications as a result of circumcision.
“This is pretty much unregulated,” Llewellyn said.
He says there is no regulated standard for training or certification of mohels, or any place for reporting injuries from circumcision.
“There’s virtually no regulation of this any place in the United States that I know of,” Llewellyn said. “I think the government probably should require some sort of training if this is going to be done.”
The overwhelming mohels are Rabbis who are not trained or licensed doctors. A law that required people who perform circumcisions to obtain medical training would immediately shut down the overhwhelming majority of mohels. So there’s the question. Would such a law be constitutional, or legal under state RFRA?
I admit, the state’s interest in safety is fairly strong here. Allowing people with no medical training to use scalpels to slice off the foreskin of eight-day-old babies is quite serious. I don’t know how many circumcisions end in injury (I am incredulous about taking the plaintiff lawyer’s number at face value), but usually the state doesn’t need much to enter the medical regulation field. Though, on the other hand, the religion interest cannot be understated. Forcing rabbis to go to medical school imposes a significant burden on the religious beliefs of most observant jews. Further, what if the state required the rabbis to use certain tools and procedures to minimize the risk of harming them, and these procedures conflicted with jewish teachings?
Related is the New York City law that requires mohels to give a disclosure form to parents before performing a type of circumcision where blood is removed through oral suction. The case was argued before the Second Circuit this fall. This case had interesting compelled speech issues, in addition to the religious liberty questions. I also previously blogged about a proposd law to ban circumcisions.