2nd Circuit: NYC Ritual Circumcision Informed Consent Rule Is Subject To Strict Scrutiny Analysis

In Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene, (2d Cir., Aug. 15, 2014), the U.S. 2nd Circuit Court of Appeals reversed the district court's denial of a preliminary injunction against New York City's informed consent regulations governing metzitzah b’peh, a method of ritual circumcision used by some Orthodox Jewish mohels. (See prior posting.) The regulation, concerned about the possible spread of herpes, requires signed written consent from a parent before direct oral suction may be used in any circumcision. The Second Circuit disagreed with the district court's conclusion that the regulation is neutral and generally applicable and is thus subject only to rational basis scrutiny. The appellate court remanded for the district court to now rule on the likelihood of success on the merits using strict scrutiny, but added:

Acknowledging the weighty interests at stake in this litigation (the plaintiffs’ in the free exercise of their faith and the Department’s in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this [strict scrutiny] standard, believing that careful adjudication will benefit in the first instance from the district court’s comprehensive analysis.

Reuters reports on the decision.