California Court Rejects Citizen Effort to Restrict Male Circumcision

May a local citizens' initiative regulate where a state law has abdicated its responsibility?
San Francisco MGMBill
Vol. 9
No. 1
John Geisheker
Tue, 08/02/2011

On July 28, 2011, a Superior Court judge in San Francisco quashed a local citizens’ initiative which proposed to limit non-therapeutic, cosmetic, circumcision to medical necessity in childhood, or consenting adult males. Over 12,000 San Francisco citizens signed the initiative, and the city duly verified and accepted it for the November, 2011, ballot. (Female genital cutting, unless therapeutic, is already illegal in California and in the U.S. and has been so for fourteen years.)

A coalition composed of Jewish, Muslim, and Fundamentalist Christian organizations opposed the citizen’s initiative and petitioned for a Writ of Mandamus.

The San Francisco judge granted the Mandamus, a highly disfavored writ, without testimony, and found that a statute in California law which reserves regulation of medical care to the State would have made such a local citizens’ initiative unlawful, even had it survived the November election, which she was not apparently willing to risk.

The Judge also found that based on the Lukumi Babalu Aye standard,1 that the initiative had not been tailored carefully enough to accommodate ritual traditions and thus unlawfully targeted minority religious rights. (It is apparently no answer that any religious limitation would affect at most, less than 10% of 3% of the U.S. national population, while ignoring the health and safety needs of the other 99.7%.)

While on its face the Court’s analysis seems mandated by the statute, (though there was no factual testimony and plenty of factual issues, certainly much more than could be resolved at a mere motion hearing) there is far more here than meets the eye.

For one thing the California statute reserving the regulation of medical care to the state has a safety and health exception allowing municipalities to regulate the healing arts in the furtherance of local health and safety. Presumptively, if factual testimony had demonstrated that circumcision affected the safety and health of San Francisco infants and children, she could just as easily (with some courage) have allowed the citizens initiative to go forward based on this exception alone— though as we see later, that would not have resolved the Free Exercise challenge.

The California statute reads in relevant part:

Sec. 460

(b) No city, county, or city and county shall prohibit a healing arts professional licensed with the state … from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

... (2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional ...

But that preemption statute raises some interesting questions of its own: Do ‘lay circumcisers,’ like the traditional barber of Islam, and non-medically trained ritual circumcisers, qualify as ‘healing arts professionals’? Is an M.D. ‘within the scope’ of medicine when practicing in a potentially septic home setting without professional backup? Are cultural, non-therapeutic, genital reduction surgeries of children, male or female, even part of the ‘healing arts’? For that matter is a parent acting as a ‘healing arts professional’ when circumcising a child in the bathtub when no state law requires any medical training or licensing for circumcision?2

Even in the most modern medical setting, male circumcision presents predictable health risks and is completely unregulated, suggesting that in most U.S. states, including Washington, state preemption is a false promise of protection for children, where there is not the slightest inquiry into morbidity.

There is no particular training required of the operator, lay or medical, beyond folklore, and no requirement to study or understand the anatomy of the amputated tissue and none is ever provided. The standard rule, and new medical residents learn it, remains, “Watch one, Do one, Teach one.” Obstetricians with not the slightest training in male urology may proceed, an irony even they, who specialize in female anatomy, have noted. This is practice surgery, often assigned to the least experienced member of the medical team, R-1’s (first-year residents) who typically have a quota to meet, itself a bioethical lapse encouraging hasty or coercive consents.

There is no U.S. state which tracks children injured by circumcision, shepherds their future care, or indentifies or restrains inept operators who leave a trail of injured infants and toddlers. For this procedure there is never a ‘procedural pause,’ the safety protocol of all modern surgery, like the pre-flight checklist of an airline pilot. There is no universal or agreed protocol for patient safety or antisepsis, or the sun-setting of worn-down surgical tools. There is no legal requirement obliging a doctor who months later sees a botch to report it.

There is no legal requirement of appropriate anesthesia or analgesia whatsoever, though studies show that circumcised boys are easily identified by their overly dramatic reaction to immunization even 6 months later. The authors of one study called the child’s reaction, “an infant analogue of Post Traumatic Stress Disorder (PTSD).”

U.S. law, 7 United States Code 54 Sec 2131, requires effective anesthesia and analgesia for veterinary and laboratory animals. No such law exists to protect infants or children. In the medical setting, only 17% of circumcised boys receive anesthesia, and many of these get a topical ointment, ineffective on highly nerve-supplied and complex tissue. In ritual settings no effective anesthesia is provided, as that would offend the intended religious ‘sacrificial’ element which from ancient times requires pain and spilt blood. In some religious traditions, older children are forced by culture and conformity to be brave and not cry out. Thus effective pain control measures for the child are vanishingly rare in all ritual (non-medical) settings.

There are numerous reasons why only the most egregious botch cases reach the attention of legal or medical authorities:

  1. The medical standard of care is merely cosmetic. If the boy’s glans is externalized by any means, that is sufficient proof of success. Collateral neurological, vascular, lymph, muscular, cosmetic and future sexual damage, is never considered.

  1. The resident or obstetrician hands the child off to the parents soon after and never sees the final result of his or her handiwork (and as we’ll see, has little to fear).

  1. Longitudinal studies of morbidity –over months, years, decades– have never been conducted, and millions of American men unwittingly bear the sorry handiwork of some 26-year-old’s first practice, ‘beta’ surgery.

  1. Young parents, especially those with a first son, have no idea what outcome to expect and are unlikely to recognize a botched circumcision.

  1. Their pediatrician will be reluctant to tell the parents their son’s circumcision was sub-standard. There are understandable social barriers against reporting an inept colleague, no legal requirement to do so, and of course the injury, especially if too much or the wrong tissue was amputated and discarded, or key neurological structures severed, is a fait accompli.

  1. My pediatrician acquaintances report seeing circumcision botches on a near weekly basis, but they agree that these are challenging cases and there's a strong temptation to say nothing to the parents, let alone to the older child or teen –if nothing can be done.

  1. It would be the rare (even foolish?) WSAJ attorney who is willing to file a medical malpractice case in any except the most catastrophic circumcision case. Damages for infants are too paltry to overbalance the risk, and the sexual losses –years in the future– are undetermined and speculative. Claiming pain for a child is useless.

  1. Defense lawyers understand and exploit the Plaintiff’s struggle, and so for any instance of a significant botch they are likely to circle their clients’ wagons and make a paltry and summary offer. The parents, embarrassed by what was likely a whimsical, coin-toss-choice to begin with, are of course, tempted to accept. Such settlements are always sealed, so nothing is learned and no medical reforms are likely to occur thereby.

Outpatient circumcisions, those performed outside the hospital setting, are the most dangerous of the medical variety, and are even less regulated. The child is handed back immediately to the parents with no overnight period of professional post-op observation. The parents are merely ‘deputized’ as trained nurses, and briefly instructed to watch for bleeding and infection. Without medical training, young parents cannot possibly guess the miniscule amount of bleeding that will kill their child or detect the onset of serious (and epidemic) infections like MRSA or VRSA, vancomycin or methycillin-resistant staph aureus.

One researcher estimates U.S. circumcision deaths at 117 per year3 but this conservative number was based on medical statistics with no accounting for deaths outside the medical setting, and is likely low. The claimed 117 is 115 infants more than the two statistical deaths American medical authorities will admit to.

There is a simple reason for the discrepancy: circumcision deaths are invariably coded without the word ‘circumcision’ appearing on the death certificate. The child is said to have died of systemic infection, hemorrhage, reaction to anesthesia, heart failure, ruptured intestine, shock, etc. No mention is made of the fact that these secondary causes of death were triggered by an unnecessary and non-therapeutic first cause that not a single medical organization in the world recommends as necessary or even beneficial ‘care.’

Between the understandable reluctance of the plaintiff’s bar and sealed settlements, there is no reliable way to use court records to estimate the morbidity in circumcision cases. And because there is no required reporting of circumcision injuries by anyone at any stage in the lucrative ‘referral chain’ –resident to obstetrician to pediatrician to pediatric urologist– there is also no way to find out the actual morbidity in cases which were NOT litigated.

Moreover, many states have a short statute of limitations for medical malpractice, and even a statute of repose, (as does Washington), which forbids suit for any reason even including fraud, after age 7 or 8, an unlikely time for a child to retain his own counsel if his parents were too embarrassed or inattentive to do so.

Because some of the effects of circumcision injuries don't appear until late adolescence or sexual debut, the victim of a circumcision botch will have no remedy at law whatsoever. Even the discovery rule tolling the statute of limitations is typically trumped by a statute of repose (and frankly, no one believes that a teen did not notice he was botched. One might wonder though--- how is a child, pre-sexual debut, to know what is ‘normal’ genitalia unless he has been told?)

RITUAL or HOME CIRCUMCISIONS---As to the health and safety issue, it should be obvious that homemade, front parlor, kitchen table, or bathtub circumcisions, using tools at hand, are totally unregulated. There is no state in the U.S. that requires a medical license or any medical training, even so much as a first-aid course, for someone feeling an urge to circumcise a child. Instructions are available on the Internet, and the medical clamps are available on eBay for under $10. Indeed, the West Coast has seen several recent cases of homemade circumcisions, which usually draw attention only because the parents, typically claiming religious motives, made a sloppy job of it and were ultimately obliged to call 9-1-1.

The actual incidence of children, male or female, circumcised at home by parents or by paid proxies is completely unknown, nationwide, and certainly much higher than the few noteworthy and salacious cases which make the evening news.

In one such Washington case, the Court noted:

“Both corporal punishment and religious practice are grounded in the parents' beliefs as to the best interests of the child, and as parental control over the child's upbringing does not justify cutting the child as punishment, it does not justify cutting the child as a religious exercise. Cutting a child's genitalia is also disfavored in public policy. Congress and several states have passed legislation outlawing female circumcision, also known as female genital mutilation. Cutting a child's genitalia [in this case, a boy's] is also disfavored in public policy.”4

As the full-time pro bono general counsel and director of an international physicians’ group, I am consulted in 100 or more cases each year of genital injuries with lifetime health and sexual consequences for the child victim. Our physicians’ group reports the injury to state medical licensing authorities and has even referred the worst cases to private counsel. Invariably attorneys, recognizing the pathetic damages available to a child and the crushing start-up costs in medical malpractice cases, express sympathy for the child’s plight, but are unwilling to take on the cause. –Who can blame them when medical and legal indifference, coupled with religious interests, are arrayed against the boy whose lifetime wishes are yet unknown?

FREE EXERCISE--The second claim of the San Francisco Superior Court judge, that any restriction on circumcision would be a violation of First Amendment free exercise of religion impinging on and uniquely affecting religious communities, is at first blush even more troublesome than the lack of medical oversight, ---but there is an easy reply.

The notion that parents can perform or submit their children to genital cutting of any kind, even religious, is at odds with the holding, never overturned, in the U.S. Supreme Court case of Prince v. Massachusetts whose oft- quoted comment about the limits of parental authority in religious matters reads as follows:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. 5

Which is to say that the long history of the United States Supreme Court's careful protection of religious belief is not applicable when it comes to religious practice which would endanger or even create a risk of harm to a child. The commonest cases, of course, include religious opposition to blood transfusions, faith healing, and other inadequate substitutes for modern pediatrics. That principal would apply a fortiori to cases where the child has been subject to completely non-therapeutic, unnecessary, merely cultural, cosmetic genital cutting in the name of religion or culture.

But the sheer ancientness of ritual male circumcision has allowed it to escape modern legal scrutiny, though there is much hand-wringing in the academic literature. Anglo-American law has simply failed to consider the rights of infant boys –even as to their fundamental right to choose their own religion. Curiously, the federal law forbidding even the mildest and symbolic female circumcision expressly disavowed any exception for religious motivation, thus ignoring those Muslim and Animist parents who claim ancient religious requirements for cutting their daughters. There has been no challenge to the U.S. federal anti-FGM law on Free Exercise grounds.

The simple example below, which tests the limits of parental authority6 to risk children’s health or safety for putative religious reasons, is instructive, if only because it is an unfamiliar fact setting, avoids imbedded ‘memes’ and old assumptions, and is thus a more neutral intellectual challenge for my colleagues at the Bar:

In some strains of Shiite Muslim belief, a child’s forehead must be slashed three times, from temple to temple, to commemorate the death by beheading of their saint Imam ibn Ali Hussein in the year 680. Shiite children, even infants and toddlers, are subject to this annual religious tradition, which causes profuse facial bleeding down to the chest, intended to create symbolic participation in the suffering of Imam Hussein. (Go to Google images and type “Ashura celebration” for an eyeful of bleeding children.) Unlike circumcision, no tissue or anatomical function is lost, but there will be visible scarring.

Would Washington state law permit this practice by parents in the septic setting of a private home? May a licensed Washington state physician, using sterile technique, accommodate the request of a Shiite parent to perform this ritual? In the absence of state regulation, could Seattle citizens forbid cutting of children on the Feast of Ashura within their municipal borders? My international physician members wonder….

Using the standard of Prince v. Massachusetts, in-home circumcisions are particularly troubling. This is true whether they're motivated by religion, culture, or whim.

Ritual circumcisers are not necessarily, or by law, M.D.’s and it is not clear whether any ‘certification’ they claim involves a high enough level of medical training to ensure minimal risk to the child. There are, for instance, lay circumcisers who advertise coyly on the Internet that they will circumcise any child, thus using religious cover to avoid being charged with practicing medicine without a license. This alternative is particularly tempting for parents on Medicaid and recent immigrants who cannot afford a procedure Washington State Medicaid has not reimbursed in decades.

Would such an occasion be protected by the Free Exercise clause? It is an interesting question for which Prince v Mass provides an answer. I imagine that the operator and the parent would simply claim an ever-rising level of piety as the heat came on, hoping the law would be as impotent as ever to protect the child when religious belief is invoked.

Another problem is that the home setting – a front parlor, a living room or even a bathtub– is inarguably septic. There is also no opportunity for the operator, whether an M.D. or not, to call for a “code blue” to assist a child who is in deep distress, no hospital ‘crash-cart’ nearby with the tools for resuscitation. Competent medical authorities able to deal with a hemorrhage from a severed frenular artery are unlikely to be close at hand.

Infants have around 12 ounces of total blood volume. The amount of blood loss that will kill an infant by hypovolemic shock and exsanguination is 2.5 ounces, approximately the bottom third of a cup of coffee, easily hidden in a modern diaper without a visible stain. Bleeding to death is quick and painless. The child just slips away, without a sound, in apparent deep sleep.

There are numerous recent cases nationwide of children who have bled to death from circumcision even in medical settings. But these are the tip of a morbidity iceberg.

Perhaps the judge in San Francisco felt her hands were tied by statute, and thought the best course was to quash a citizens’ initiative on the grounds that state authorities are completely up to the task of regulating this dark corner of American medical culture, inherited from our Puritanical pre-germ-theory, British ancestors, and its home-grown doppleganger.

But as California has not seen fit to regulate the non-therapeutic cutting of male children, let alone discourage homemade circumcisions in septic settings, it is hard to see where the state has ‘pre-empted’ local law. May a state preempt, from local regulation, a safety and health situation which the state has manifestly abdicated, when 12,000 citizens of a city within its borders are more alert?

And as someone who has worked on this issue, full-time, for 10 unpaid years, –traveling, lecturing, writing, comforting anguished parents and counseling aggrieved young men– I can tell you there is much more here than meets the eye, and many more melancholy and heart-breaking stories of grievously injured children than you might suppose. Where is the law when our children need protection from their own parents as well as unethical practitioners exploiting parental fears?

1 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

2 State of Washington v. Baxter. 134 Wn. App. 587; 141 P.3d 92 (2006).

3 Dan Bollinger. (2010). Lost Boys: An Estimate of U.S. Circumcision-Related Infant

Deaths. 4 Thymos: Journal of Boyhood Studies 78-90 (2010).

4 State of Washington v. Baxter. 134 Wn. App. 587; 141 P.3d 92 (2006).

5 Prince v. Massachusetts, 321 U.S. 158 (1944).

6 Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-1999); Shea Lita Bond. Female Circumcision and the Equal Protection Clause. 32 John Marshall L. Rev. 353 (1999).