It Is Unlawful to Use Medicaid for Routine Infant Circumcision

The following article, written by ARC's Legal Advisor, Peter Adler, has been accepted for publication in the Journal of Law and Medicine this December 2011. In 2000, the same journal published "Circumcision of Healthy Boys: Criminal Assault?", co-authored by Steven Svoboda of ARC.
Article Review
Vol. 9
No. 1
Peter W. Adler
Tue, 10/11/2011

In 1949, a British physician wrote in a landmark article that non-therapeutic circumcision is risky, harmful, and should not be performed.  The article led the British National Health Service to end coverage of the surgery in 1950.  The circumcision rate in Great Britain fell quickly from 25% to 6%.  Thus, most parents say "no" to circumcision when they must pay for it themselves.

 In sharp contrast, in 1965, Congress passed the jointly federal and state funded Medicaid act for the poor and their families.  American physicians began to offer circumcision as a free Medicaid benefit, helping it to become the most frequently performed procedure in American hospitals.  In 2003, more than one million circumcisions were performed in America, 30% of them paid for Medicaid.  Thus, the government and taxpayers have financed invasive surgery on between 50 and 100 million healthy boys since 1965, at a cost of billions or tens of billions of dollars, even though American medical associations have not recommended it since 1971, and call it unjustified.

It is very encouraging that since 1982, and especially in the new millennium, seventeen states have ended  Medicaid coverage, either through legislation or by administrative action of state Medicaid officials.  In those states, circumcision rates have fallen by 34%.  North Carolina legislators reasoned that circumcision is unnecessary, and that scarce resources should be reallocated to necessary medical care.  The remaining thirty-three states evidently believe that they can decide this issue as a policy or political matter.  Eleven of them have written that they are continuing coverage because of American medical policy that the circumcision decision should be left to parents.  

The fundamental provision of the federal and state Medicaid acts is that physicians can only use Medicaid to pay for medically necessary services.  Many states also expressly exclude coverage of cosmetic surgery.  Federal and state Medicaid law also require the diagnosis of a medical condition, and the recommendation of an effective treatment.  Even then, surgery is only allowed as a last resort. 

Circumcision is obviously unnecessary, insofar as most men who have ever lived have been intact.  American medical associations concede that it is usually performed for religious, cultural, personal, and especially cosmetic reasons (to "look like the father").  Moreover, newborns are healthy, do not require any treatment, and any benefits circumcision may have can be achieved without it.  Thus, 50 to 100 million boys have been circumcised unlawfully since 1965. 

In conclusion, it is not within the discretion of the federal government or the remaining states to continue Medicaid coverage of circumcision if they choose.  The law is clear:  Medicaid offices, otherwise legislators, are required by law to end the practice.