Does the Constitution absolutely protect the free exercise of oral-genital suction when it threatens the health and safety of human beings, particularly infants? And does the Constitution bar parents from having any remedy for the lifelong physical, emotional, and financial damage that may potentially result from the negligent HSV transmission through metzizah be'peh? This article focuses on the controversial issue of state interference with the Orthodox Jewish practice, a topic recently at the forefront in New York City. Until the government recognizes its duty to provide affirmative regulation of metzitzah be'peh to protect the compelling health interest of infants, thousands of infants will continue to be at risk of contracting potentially fatal neonatal HSV without any available remedy or criminal liability. In Section II, the history and religious significance of metzizah be'peh is summarized for a better understanding of the strong religious beliefs protected by the Free Exercise Clause. Section III identifies the damaging and permanent nature of HSV by illustrating the range of symptoms, detrimental effects, and virulence of the virus. Section IV offers a short discussion of the relatively recent medical studies which conclusively correlate a high risk of HSV infection with metzitzah be'peh, evidence of New York CIty's compelling interest to affirmatively regulate or ban the religious ritual of oral-genital suction. Next, section V explores the present state of the case law surrounding the First Amendment's Free Exercise Clause. This section addresses the analogous judicial fork in the road where the current issue has been temporarily left to idle based on two very different directions taken in the most recent Free Exercise cases from the United States Supreme Court. Section VI discusses how the modern trend of governmental regulations intersecting with religious freedom offers insight to support necessary government regulation of metzitzah be'peh. In conclusion, section VII explores the city's proposed solution and the solution's ineffectiveness and inability to protect infants from the incurable and potentially fatal herpes virus.
Note, Too Much Religious Freedom - Infants Infected with Herpes after Jewish Mohel Applies Oral Suction to Circumcised Penises, 19 J.L. & Health 297 (2004-2005)