Orthodox Jewish groups have brought a lawsuit against New York City over the city's new oral suction circumcision rule.
In some of New York's Orthodox Jewish communities, the circumciser will engage in the ancient tradition of using his mouth to draw blood from a baby's penis during the circumcision ritual, reports Reuters.
The New York City Board of Health has linked this practice to spreading herpes to children. Health officials say that at least 11 boys have contracted herpes through this type of circumcision between 2004 and 2011. Two of the children died and two suffered brain damage, they say.
As a result, the city adopted a rule that requires parental consent before such circumcision can be given. Parents must sign a consent form that says the health department advises that "direct oral suction should not be performed" because of the risk of contracting herpes, reports Reuters.
Jewish orthodox groups debate the scientific evidence that link their circumcision ritual to herpes and claim that the city health regulation violates the First Amendment by unfairly targeting their religion and forcing speech with the parental consent form.
The religious groups have a valid claim as government agencies generally cannot adopt rules that target a specific religious practice or force anyone to speak. However, the First Amendment rights to religion and speech are not unlimited, and in certain circumstances the government can invade these rights. Such circumstances can include protecting the health and safety of children.
A judge hearing the case will likely have to decide whether the government has a compelling interest in the rule and whether the rule is narrowly tailored to the interest. Given that the interest in the rule is to protect children, the government should not have a problem proving this. However, the greater issue may be whether the parental consent, and the wording on the consent, are overly broad and necessary.