A Unique Church and State Issue

[Ralph]

I've never seen anything like this before and I've been teaching the First Amendment seminar for decades. Can't wait for the first class meeting at the end of the month.

Assuming the rabbi is in fact so infected I don't see how any rational objection can be raised. Before Dapsone any clergyman of any denomination with leprosy would have been spirited off to Hawaii or Louisiana. There's no special immunity from health law orders for men (or women) of the cloth.

Of course fear of a ban on the practice itself is way beyond unrealistic-the First Amendment solidly supports religious ritual, especially those central to a faith. That Bloomberg would meet with the rabbis on what essentially is an administrative decision beautifully illustrates the sensitivity of any action that a minority religion might perceive, for whatever reason, as threatening.

*****

New York Daily News - http://www.nydailynews.com
Mike caught in row over rabbi's herpes
By MAGGIE HABERMAN
DAILY NEWS CITY HALL BUREAU
Friday, August 12th, 2005

City officials have moved to ban a rabbi suspected of infecting infants with herpes from performing an ancient circumcision rite, prompting religious Jewish leaders to plead with Mayor Bloomberg to intervene.

Bloomberg sat down at City Hall yesterday with dozens of ultra-Orthodox rabbis, who said they are concerned that such a ban would set a bad precedent, according to several people at the meeting.

The mayor "basically accepted a suggestion that the time should be given for both sides to sit down and iron this thing out," said Rabbi David Niederman, who praised Bloomberg.

But several sources said the mayor promised that the city would never ban a religious practice outright - but also held firm that he "has an obligation" to uphold laws.

The Daily News first reported in February that the city Health Department was investigating whether Rockland County-based Rabbi Yitzchok Fischer gave herpes to a baby through the practice of metzizah b'peh - in which the rabbi uses his mouth to suck blood from the circumcision wound. The baby later died.

On Aug. 1, the Health Department sent Fischer's lawyer a draft of an order banning the rabbi from performing metzizah b'peh in the city, officials said. Fischer has until next week to respond.

But the threat of such an order alarmed the ultrareligious community.

The controversy is still roiling at a time when Bloomberg, who has had a somewhat strained relationship with the Orthodox community, is looking to repair things before the November election.

[jbuck919]

I wonder if the original precedent for this isn't "typhoid" Mary Malone, who was finally confined to keep her from spreading a disease she only carried (and who was also deprived of her living as a cook). I doubt that at the time there was any precedent for an administrative order banning someone from spreading disease--or that anyone cared much about the legal niceties.

[Ralph]

I wonder if the original precedent for this isn't "typhoid" Mary Malone, who was finally confined to keep her from spreading a disease she only carried (and who was also deprived of her living as a cook). I doubt that at the time there was any precedent for an administrative order banning someone from spreading disease--or that anyone cared much about the legal niceties.

*****

The legal doctrine of quarantine was very well established before Typhoid Mary's appearance. The Supreme Court dealt with it during the early nineteenth century when it was already firmly rooted in both international and domestic law. Ships flying a yellow flag, indicating certain diseases rampant on board, were barred from entering ports in the eighteenth century.

Knowledge about the specific person to person pathogenic transmissiblity of certain diseases led to laws and regulations in the late nineteenth century reflecting the emergence of the modern discipline and practice of public health. Typhoid Mary was an asymptomatic carrier of typhoid fever - that meant she could infect anyone eating foods she cooked (the pathogen wasn't destroyed by cooking) but that otherwise she could pursue a normal life. She would never actually become ill with typhoid fever.

Given several chances to not ply her trade as a cook, she was caught at it and finally banished to Blackwell's Island (later Welfare Island, now Roosevelt Island).

I became interested in this story as a kid when my camp had a Typhoid Mary experience with a food handler and a New York City Department of Health doctor came to our apartment to check me out. I was about 8 or 9 and never had any medical problem. But I remember his visit well.