Halachic Question for Pizza

[Ralph]

Pizza,

I would be very interested in a serious response to the issue posed by the article below. Aside from a handful of young students from yeshiva and seminary backgrounds I personally know no one who has a real knowledge of halacha.

There is an obvious conflict between public health law, rules and policy having no specific application to Orthodox Jews and the impact which a minority now fears.

I would like to use your response back-to-back with this article for a seminar discussion in three weeks or so. Of course I would not identify you other than "An Orthodox Jewish attorney who is a regular contributor to a discussion board I belong to and a very experienced trial lawyer."

If others wish to chime in - great.

*****

From The New York Times:

August 26, 2005
City Questions Circumcision Ritual After Baby Dies
By ANDY NEWMAN

A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes - one of them fatal - in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice.

The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom.

"This is a very delicate area, so to speak," said Health Commissioner Thomas R. Frieden.

The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it.

It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died.

Since February, the mohel, Rabbi Yitzchok Fischer, 57, has been under court order not to perform the ritual in New York City while the health department is investigating whether he spread the infection to the infants.

Pressure from Orthodox leaders on the issue led Mayor Michael R. Bloomberg and health officials to meet with them on Aug. 11. The mayor's comments on his radio program the next day seemed meant to soothe all parties and not upset a group that can be a formidable voting bloc: "We're going to do a study, and make sure that everybody is safe and at the same time, it is not the government's business to tell people how to practice their religion."

The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes.

Dr. Frieden said the department regarded herpes transmission via oral suction as "somewhat inevitable to occur as long as this practice continues, if at a very low rate."

The use of suction to stop bleeding dates back centuries and is mentioned in the Talmud. The safety of direct oral contact has been questioned since the 19th century, and many Orthodox and nearly all non-Orthodox Jews have abandoned it. Dr. Frieden said he hoped the rabbis would voluntarily switch to suctioning the blood through a tube, an alternative endorsed by the Rabbinical Council of America, the largest group of Orthodox rabbis.

But the most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision, and they have no intention of stopping.

"The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change."

David Zwiebel, executive vice president of Agudath Israel, an umbrella organization of Orthodox Jews, said that metzitzah b'peh is probably performed more than 2,000 times a year in New York City.

The potential risks of oral suction, however, are not confined to Orthodox communities. Dr. Frieden said in March that the health department had fielded several calls from panicked non-Orthodox parents who had hired Hasidic mohels unaware of what their services entailed.

Defenders of oral suction say there is no proof that it spreads herpes at all. They say that mohels use antiseptic mouthwash before performing oral suction, and that the known incidence of herpes among infants who have undergone it is minuscule. (The city's health department recorded cases in 1988 and 1998, though doctors in New York, as in most states, are not required to report neonatal herpes.)

Dr. Kenneth I. Glassberg, past president of the New York section of the American Urological Association and director of pediatric urology at Morgan Stanley Children's Hospital of New York-Presbyterian, said that while he found oral suction "personally displeasing," he did not recommend that rabbis stop using it.

"If I knew something caused a problem from a medical point of view," said Dr. Glassberg, whose private practice includes many Hasidic families, "I would recommend against it."

But Rabbi Moshe Tendler, a microbiologist and professor of Talmud and medical ethics at Yeshiva University, said that metzitzah b'peh violates Jewish law.

"The rule that's above all rules in the Torah is that you cannot expose or accept a risk to health unless there is true justification for it," said Dr. Tendler, co-author of a 2004 article in the journal Pediatrics that said direct contact posed a serious risk of infection.

"Now there have been several cases of herpes in the metro area," he said. "Whether it can be directly associated with this mohel nobody knows. All we're talking about now is presumptive evidence, and on that alone it would be improper according to Jewish law to do oral suction."

The inconsistent treatment of Rabbi Fischer himself indicates the confusion metzitzah b'peh has sown among health authorities, who typically regulate circumcisions by doctors but not religious practitioners.

In Rockland County, where Rabbi Fischer lives in the Hasidic community of Monsey, he has been barred from performing oral suction. But the state health department retracted a request it had made to Rabbi Fischer to stop the practice. And in New Jersey, where Rabbi Fischer has done some of his 12,000 circumcisions, the health authorities have been silent.

Rabbi Fischer's lawyer, Mark J. Kurzmann, said that absent conclusive proof that the rabbi had spread herpes, he should be allowed to continue the practice. Rabbi Fischer said through Mr. Kurzmann that the twin who died and the Staten Island boy both had herpes-like rashes before they were circumcised and were seen by a pediatrician who approved their circumcision. The health department declined to comment on its investigation.

[jbuck919]

Ralph, you said you were getting better, but you still keep sneezing, hacking, and coughing. Why should Pizza have any exceptional knowledge of the common cold, or its associated sore?

Edit: To cleanse it? TO CLEANSE IT? Are they mad? An antiseptic swab will cleanse it. And that, like health vs. illness and preferring the lives of our children over our own, has to be the last word.

[Ralph]

Ralph, you said you were getting better, but you still keep sneezing, hacking, and coughing. Why should Pizza have any exceptional knowledge of the common cold, or its associated sore?

Edit: To cleanse it? TO CLEANSE IT? Are they mad? An antiseptic swab will cleanse it. And that, like health vs. illness and preferring the lives of our children over our own, has to be the last word.

*****

It isn't the last word for some of these people-as one rabbi is quoted in the article, change is not an option.

[jbuck919]

Clitorectomy, though more horrific, is a practice in the same category. No, on second thought, I guess that's an unnecessarily inflammatory comparison.

Many religious groups have made concessions to the plain sanity of generally accepted principles of health and humaneness. The Amish allow their children to be immunized against disease (that was a fight, too). It is against the law for a Jehovah's Witness family to deny its children a blood transfusion when it is needed, or in general for any religious group to deny a child medical care on the basis of religious principle. This is plainly in the same category.

[Modernistfan]

I couldn't have made this one up if I were trying to bash the Orthodox. This is hardly the only infectious disease that could be spread by this route. What if the mohel had HIV? (And please don't say it could never happen; please see the movie "Trembling Before God.")

[jbuck919]

I couldn't have made this one up if I were trying to bash the Orthodox. This is hardly the only infectious disease that could be spread by this route. What if the mohel had HIV? (And please don't say it could never happen; please see the movie "Trembling Before God.")

Begone! Thou are the demon Naftsinredom!

[Barry]

I couldn't have made this one up if I were trying to bash the Orthodox. This is hardly the only infectious disease that could be spread by this route. What if the mohel had HIV? (And please don't say it could never happen; please see the movie "Trembling Before God.")

Interesting documentary. I've recommended it on here before.

[Ralph]

Clitorectomy, though more horrific, is a practice in the same category. No, on second thought, I guess that's an unnecessarily inflammatory comparison.

Many religious groups have made concessions to the plain sanity of generally accepted principles of health and humaneness. The Amish allow their children to be immunized against disease (that was a fight, too). It is against the law for a Jehovah's Witness family to deny its children a blood transfusion when it is needed, or in general for any religious group to deny a child medical care on the basis of religious principle. This is plainly in the same category.

*****

It's not a simple picture. Of course when any religious cohort adapts to sectarian principles including health measures there's no clash between Church and State. However, when objections are maintained courts, and eventually the Supreme Court, must decide the extent the First Amendment protects religious practice from secular regulation.

With regard to immunizations, generally parents can decline otherwise mandatory shots on religious principles. Parents may not decline lifesaving or life-extending medical and surgical aid but the evidence must be very clear that the medications/procedures have a high probability of success. If parents refuse to allow their kids such intervention, courts may take custody of the kids and order whatever is needed.

Complicating the picture is a slowly emerging body of case law that recognizes the role of a "mature minor" to participate in attempts to decline medical procedures. Jehovah's Witnesses, who have an unparalleled record of Supreme Court successes, is pathfinding this theory.

[jbuck919]

Complicating the picture is a slowly emerging body of case law that recognizes the role of a "mature minor" to participate in attempts to decline medical procedures. Jehovah's Witnesses, who have an unparalleled record of Supreme Court successes, is pathfinding this theory.

How ironic. In New York, the sexual age of consent is unusally high (17, where many states put it at 16) and there is the ludicrous law that parents must support their children up to the age of 21. Let the test case be there for where a child is a "mature minor."

[Ralph]

Complicating the picture is a slowly emerging body of case law that recognizes the role of a "mature minor" to participate in attempts to decline medical procedures. Jehovah's Witnesses, who have an unparalleled record of Supreme Court successes, is pathfinding this theory.

How ironic. In New York, the sexual age of consent is unusally high (17, where many states put it at 16) and there is the ludicrous law that parents must support their children up to the age of 21. Let the test case be there for where a child is a "mature minor."

*****

Well, generally, support of kids to age 21 is only an issue when there's a divorce. And of course we have the Emancipated Minor doctrine where no obligation to a child exists when that state is reached (as, for example, when a child joins the military at age 18 or the prison system at any age when sentenced as an adult. Or marriage.).

In divorce settlements/decrees we have what is called "The SUNY" obligation where parents are, if financially able, obligated to provide their children with a college education roughly based on the cost of attending a State University of New York college (there are a number). Since kids usually are over 21 when getting their bachelor's degree this puts parents on the court-ordered support hook for quite a while.

[pizza]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

[jbuck919]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

Now there is a balanced statement. And totally useless in that it evades and deflects the moral problem that underlies the issue. It is as if I said "I am an expert on Catholic tradition (which I am) but I refuse to comment on the prohibition against contraception because Cardinal Eagan is a much greater expert on the subject."

We freaking know how the practitioners feel, Pizza. Give us an opinion, why don't you?

[pizza]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

Now there is a balanced statement. And totally useless in that it evades and deflects the moral problem that underlies the issue. It is as if I said "I am an expert on Catholic tradition (which I am) but I refuse to comment on the prohibition against contraception because Cardinal Eagan is a much greater expert on the subject."

We freaking know how the practitioners feel, Pizza. Give us an opinion, why don't you?

Ralph asked for an Halachic opinion. I'm not qualified to give one and I referred him to an expert who is. A person who is not qualified to give an expert opinion on a matter of law should keep his mouth shut. That's also good advice for teachers who don't know diddly squat about a variety of subjects but notwithstanding their ignorance have a compulsion to shoot off their mouths at every opportunity.

[jbuck919]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

Now there is a balanced statement. And totally useless in that it evades and deflects the moral problem that underlies the issue. It is as if I said "I am an expert on Catholic tradition (which I am) but I refuse to comment on the prohibition against contraception because Cardinal Eagan is a much greater expert on the subject."

We freaking know how the practitioners feel, Pizza. Give us an opinion, why don't you?

Ralph asked for an Halachic opinion. I'm not qualified to give one and I referred him to an expert who is. A person who is not qualified to give an expert opinion on a matter of law should keep his mouth shut. That's also good advice for teachers who don't know diddly squat about a variety of subjects but notwithstanding their ignorance have a compulsion to shoot off their mouths at every opportunity.

Ralph asked for a serious response from you to a situation he presented. He didn't ask for an official judgment I assume he knew you were not qualified to give. Go back and re-read the original post. Of course, you are under no obligation to oblige Ralph or us with such a response. But then, I am under no obligation to refrain from pointing out what appears to be a misunderstanding.

[pizza]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

Now there is a balanced statement. And totally useless in that it evades and deflects the moral problem that underlies the issue. It is as if I said "I am an expert on Catholic tradition (which I am) but I refuse to comment on the prohibition against contraception because Cardinal Eagan is a much greater expert on the subject."

We freaking know how the practitioners feel, Pizza. Give us an opinion, why don't you?

Ralph asked for an Halachic opinion. I'm not qualified to give one and I referred him to an expert who is. A person who is not qualified to give an expert opinion on a matter of law should keep his mouth shut. That's also good advice for teachers who don't know diddly squat about a variety of subjects but notwithstanding their ignorance have a compulsion to shoot off their mouths at every opportunity.

Ralph asked for a serious response from you to a situation he presented. He didn't ask for an official judgment I assume he knew you were not qualified to give. Go back and re-read the original post. Of course, you are under no obligation to oblige Ralph or us with such a response. But then, I am under no obligation to refrain from pointing out what appears to be a misunderstanding.

The following quote was Ralph's request:

"Pizza,

I would be very interested in a serious response to the issue posed by the article below. Aside from a handful of young students from yeshiva and seminary backgrounds I personally know no one who has a real knowledge of halacha."

The obvious intent of his question was to elicit a response from someone who he believes has "a real knowledge of halacha" relative to the question posed. There is no misunderstanding as far as I'm concerned. I don't know the halacha relevant to this question and any response allegedly based on such knowledge would be misleading and presumptuous.

For the same reason, I wouldn't give an opinion on a matter of Admiralty Law with which I have no experience even though I am an expert in the field of law.

[jbuck919]

Fair enough, pizza.

[Ralph]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

*****

Thanks, I may do that. I plan on about one class hour on this issue with assigned reading. My main interest is to sensitize the students to the problem of generally applicable public safety and health laws and regulations that impact adversely on a religious minority. In strict constitutional analysis there's no question where the law is when the risk clearly exceeds the claimed duty to exercise a practice but there's more to training lawyers than hornbook law.

I may require argument pro and con.

[Ralph]

Ralph:

I decline to offer any Halachic analysis or opinion as I am neither a rabbi nor a posek who can give legal opinions under Jewish Law.

I'm aware that the Orthodox Community is divided on the question of the practice of direct oral contact during circumcision. Some believe direct contact between the mohel's mouth and the site of the cut is necessary while others believe the approach in which the blood is drawn through a small, sterilized glass tube that has no direct oral contact with the site is acceptable. That division of thought has been the state of affairs for quite a while.

The Rabbinical Council of America, the largest Orthodox rabbinical organization in the country recently issued a statement supporting the use of the glass tube. Since the safety and preservation of human life is paramount in Jewish Law, there is no question in my mind that the use of the tube is acceptable.

If you want a more detailed and thoroughly accurate analysis of the problem, I suggest you contact Dr. Moshe Tendler who teaches biology at New York's Yeshiva University. He is both a rabbi and physician and an expert on the subject; he has both the scientific and Halachic knowledge to explain it.

Now there is a balanced statement. And totally useless in that it evades and deflects the moral problem that underlies the issue. It is as if I said "I am an expert on Catholic tradition (which I am) but I refuse to comment on the prohibition against contraception because Cardinal Eagan is a much greater expert on the subject."


We freaking know how the practitioners feel, Pizza. Give us an opinion, why don't you?

*****

I asked Pizza for an opinion to help me, not to put him on the spot. I'm happy with his answer and don't feel he had any obligation to respond in the first place.