I’ve recently been discussing with SIW the new state policies regulating metzita b’feh for circumcisions. I’m reading this new policy as a pragmatic compromise between the State and the religious institution.
There is obviously a segment of the Jewish population who have been neglecting basic health requirements1 and to protect the general welfare of it’s population, the State understandably wants to take action. One option would be to make the practice of metzitza illegal, but this would be wholly counter-productive. Outlawing metzitza would alienate and antagonize the people whose behavior the State is trying to change. Not only would it be political suicide for whomever would suggest it, but there would likely be a knee-jerk backlash against the state trying to regulate religious practice. In fact I would guess that such an action would lead to more people ignoring the health laws simply out of spite, thus increasing the risk of infections while decreasing the likelihood that such infections would be reported.
On the other hand, the compromise defines mutually acceptable objective standards for metzitza, and in doing so outlines the expectations from both sides. The Rabbis get assurance and security from knowing what the State expects of them (and having input in such definitions), and knowing that given these rules metzitza may continue without futher interference from the government. In return for granting such autonomy, the State can not only expect the Rabbis to follow the mutually approved health code but also to actively assist in enforcing the standards.
From Section III of the Circumcision Protocol:
A. If an infant becomes infected with HSV on or after April 28, 2006 within a compatible incubation period following metzizah b’peh, the NYSDOH will conduct an investigation without prejudging the cause. Such an investigation would include but not be limited to interviewing, reviewing medical records of, and testing the mohel in question and all pertinent caregivers. The mohel in question must stop metzizah b’peh (up to 45 days) until the NYSDOH investigation is completed.
B. So long as each local health department in whose jurisdiction such public health investigation is proceeding agrees to be bound by, without addition to or modification of, any and all provisions of this Circumcision Protocol, community Rabbis are expected to lend their support and cooperation in the event of any such public health investigation.
Quick recap: the Rabbis maintain autonomy and can expect the security to continue the practice and the State now has a legal and social mechanism for pursuing violations.
I’d say everyone wins.
1. And by logical extension the halakhot of pikuach nefesh, but that’s another matter.