Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 24, 2010

Circumcision

There is a drive for a ballot initiative in San Francisco that would make the performance of a circumcision on a minor illegal "except where "the operation is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available."  There is no religious exemption in the proposed language.

Paul Horowitz expresses the view that the initiative would likely pass constitutional muster despite its disproporationate effect on those who seek circumcision for religious reasons.  He also raises the question, I think an important one, of whether this is wise policy. 

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/circumcision.html

Stabile, Susan | Permalink

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My first reaction was that this is an outrage and was also anti-Semitic, but my second thought is that I am not 100% sure.

Should female circumcision be permitted for religious reasons? Admittedly, female and male circumcision are very different. But they are still surgical removal of God-given parts. I think it could be argued that both males and females have a right to bodily integrity, and if some surgical procedure is going to be performed for religious reasons, it should be postponed until the person who will have the surgery can make an informed decision.

The most FURIOUS online debate I have ever participated in involved circumcision. (I was arguing at the time that it was not "mutilation" and should be permitted.) Things got so heated that I began to fear for my personal safety. I am not sure the government has a compelling interest in preventing circumcision, but there are people who feel very, very strongly about it. What other part of a child would we allow to be cut off for religious purposes? I think a case can be made against circumcision based on bodily integrity and the dignity of the human person.

Posted by: David Nickol | Nov 24, 2010 10:49:07 AM

Free Exercise should not even be implicated, since infant circumcision does not involve someone trying to exercise their religion, it involves them trying to forcibly and permanently impose their religion on someone else.

Posted by: Andrew MacKie-Mason | Nov 24, 2010 1:37:01 PM

But they can still take your child to an abortionist and have a major procedure done that kills an unborn baby. They can do this without your knowledge, permission, or consent.

Posted by: Fr. J | Nov 25, 2010 3:46:36 PM

"Free Exercise should not even be implicated, since infant circumcision does not involve someone trying to exercise their religion, it involves them trying to forcibly and permanently impose their religion on someone else."

Ah, yes, and the state should no doubt be in charge of ensuring that parents don't proselytize their own children.

Susan, who really cares about a religious exemption? This is a plain stupid law to impose on anyone. The fact that anyone should have to go groveling before a state legislature to be granted a religious exemption for something like this is ridiculous. And female circumcision involves future sexual pleasure. Mutilation is more proper terminology.

This likely has little to do with anti-Semitism. It would seem to serve the so-called childrens' rights crowd quite nicely. Of course, when the "family" becomes a utilitarian unit rather than a natural institution, we're likely to see this.

Posted by: Don Altobello | Nov 25, 2010 8:19:47 PM

Fr. J,

Abortion is totally irrelevant to a discussion of circumcision. But I am curious. You say, "They can do this without your knowledge, permission, or consent." Who do "they" and "your" refer to?

Posted by: David Nickol | Nov 26, 2010 12:26:21 PM

"Mutilation is more proper terminology."

Don,

Why isn't cutting off a baby boy's foreskin "mutilation"? What other living, functioning part of a human body is it permissible to surgically remove for religious reasons? I am not saying I support the law. But is there nothing about circumcision that's questionable?

Some Jews nowadays do not have their boys circumcised (although I can find no statistics to say how many), and there are several Jewish ant-circumcision organizations.

Posted by: David Nickol | Nov 26, 2010 12:40:51 PM

@Fr. J: "But they can still take your child to an abortionist and have a major procedure done that kills an unborn baby. They can do this without your knowledge, permission, or consent."

Abortion involves legitimate disputes over whether the fetus is an actual person, as well as legitimate claims that the mother is being subjected to unlawful servitude. Neither of those concerns exist in the context of medical mutilation. It's sole purpose is to impose a religious belief on the infants.

"Ah, yes, and the state should no doubt be in charge of ensuring that parents don't proselytize their own children."

When such proselytizing involves physical mutilation of their children's bodies? Yeah, that's a reasonable thing for the state to prevent. It's interesting that you think this is such a ridiculous idea: clearly you think of parents as the effective owners of their children, who should have the right to do whatever they choose to their children as part of "raising" them.

Posted by: Andrew MacKie-Mason | Nov 26, 2010 1:23:41 PM

David, the State can do that. If your child in school ask for an aspirin they have to call to ask you if it is okay. BUT if she wants an abortion you may never know.

Andrew, there is no legitimacy to the claim that an unborn child is not a child. She is. Tearing a baby apart in mutilation. I would remind you that this is a Catholic site, isn't it? If your son was taken and circumcised without your permission I bet you would have a problem with that. Children do NOT belong to the State. Their parents do have natural rights over them.

Posted by: Fr. J | Nov 27, 2010 12:26:04 PM

Fr. J,

I don't really want to argue the whole issue of parental consent (and judicial bypass) for abortion, but it is really quite a different issue from a school giving a child an aspirin. After all, it is not the school that makes the decision about abortions. The power the state exercises through schools is rather minimal. But the state has a great deal of power when it comes to children, including the power to take children away from parents the state considers unfit. And while there may be disagreements over various ways the state uses this power, I don't think anyone would agree that parents should have absolute power over their children.

In any case, I hope you are not implying that until the state outlaws abortion, any acts performed by the state for the welfare of minor children are hypocritical and the state has no right to enforce them. The issue of whether or not parents should be allowed to have their children circumcised should be decided on its merits, not on whether or not abortion is legal. It sometimes SEEMS that SOME in the pro-life movement feel that until the abortion issue is settled to their satisfaction, all other issues should be off the table. But that is obviously impossible.

Posted by: David Nickol | Nov 27, 2010 4:19:51 PM

David, I would hope that you would agree that the State should not have absolute power over children. The State does not have the right to interfere here. It is not in the "welfare" of a minor child to kill her child without parental knowledge and consent. I am reminded of the Soviet days when children who informed on their parents were proclaimed heroes by the State.

I argue the same with circumcision. It is not for the nanny State to decide. Don't you notice how they abuse the alleged "right to privacy." Here they want to take it away when it comes to circumcision.

Posted by: Fr. J | Nov 27, 2010 8:15:26 PM

Fr. J,

You say: "Don't you notice how they abuse the alleged "right to privacy." Here they want to take it away when it comes to circumcision."

I think you are contradicting your own argument against abortion if you are defending parents' rights to have their boys circumcised by appealing to a "right to privacy." Surely your argument is that an unborn baby is a person, and no right to privacy allows parents to have it disposed of. Not everyone agrees that an unborn baby is a person, but the law is clear that a newborn baby boy is indeed a person under the law, and almost everyone (except perhaps Peter Singer and a handful of others) would agree the state must protect him from harm. The only question here is whether circumcision is harm. I would think that championing the rights of newborns would be a very good stepping stone to championing the rights of the unborn.

I saw a headline somewhere (I didn't read the article) saying that circumcision was somewhere between ear piercing and foot binding. I am sure the Chinese of a hundred or so years ago would have scoffed at the idea that they should not bind the feet of girls, just as many people no doubt scoff at the idea of banning circumcision. They had been doing it for a thousand years! How could anybody oppose it?

Posted by: David Nickol | Nov 27, 2010 9:48:36 PM

David, no I am showing that they don't really believe in a right to privacy. It is all a facade and has been since 1973. It is the same with circumcision. This is just another way the State is taking control over families. One poster said I believed that parents "owned" children. Yet the State is deliberately saying that IT owns our children. Government intrusion into the family is traditionally only a last resort and nothing in the Constitution supports it otherwise. You believe in "choice"? Then let families make the choice.

Posted by: Fr. J | Nov 28, 2010 4:43:04 PM

I'm not at all sure what I think about the law, but isn't there a factual issue here? Presumably Fr. J. and others would not say it is unduly interfering with families to prevent parents from doing physical harm to their children. We don't say "let families make the choice" to kill or maim their children.

I don't have a clear sense of the evidence on the medical benefits or lack thereof of circumcision. But if it is the case (as I have read) that the current medical position is that there is no good medical reason for routine infant circumcision and that circumcision substantially reduces male sexual pleasure, is it so clear this "mutilation" is different from female genital mutilation? What difference is there other than that one is longstanding in our own culture and the other seems barbarian to us because we don't practice it? It may be that it is clear the FGM is much more harmful medically than circumcision, but again, that is a factual question and I haven't heard anyone on this chain address such questions.

Posted by: Susan Stabile | Nov 28, 2010 5:06:22 PM

"Why isn't cutting off a baby boy's foreskin "mutilation"? What other living, functioning part of a human body is it permissible to surgically remove for religious reasons? I am not saying I support the law. But is there nothing about circumcision that's questionable?"

David--many, many people have their male children circumsized for other than religious reasons. Who really cares? I suppose that at least in some individual circumstances (if not in the collective) there could be a health benefit in terms of keeping an infant male's penis clean. But that is entirely beside the point.

It is not harming anyone. Is our society so vane and ridiculous that anti-circumcision for the infant male are going to be the next political movement for childrens' rights. Does there really need to be some inkling of a health or some other so-called legitimate benefit for families to make these decisions. Does nothing escape the endless reach of attorneys and public policy activists who have nothing better to do with their time? Perhaps our burgeoning tenured-track law school professors should put this on their list for law review articles to increase their profile.

This is entirely the type of law that makes Americans "anti-elitist": thinking that every decision that effects one's child should be run through a vigorous due process balancing test. Frankly, my parents' decision to raise me as a Catholic is much more "invasive" that cutting off the foreskin of my penis as a 1-day old infant. Some of their slightly less prudent decisions have affected me in negative ways that I've had to work to counteract. Shall we have a legislature or tribunal set up to discern all these things. See where I'm going with this, David? The dictatorial implications are endless?

To me, the bar for the state swooping into private family affairs should be much higher than the drafters of this bill intend. Do you not agree? If you are saying you "are not saying that you support the law," what are the reasons you would oppose it?

Posted by: Don Altobello | Nov 28, 2010 5:31:28 PM

Don,

I can't see myself supporting a law that would prohibit circumcision, but I would urge parents not to have their boys circumcised, and I don't agree with a lot of what you say.

My position is that there is a serious question here, and I don't like seeing it dismissed out of hand. I repeat, what other functioning body part is cut off routinely? When I was a kid (in the 1950s), having your tonsils removed was routine. Now it is a lot less common, and some even suggest it is of no value or even harmful.

Circumcision is intensely painful, and up until about ten years ago, no anesthetic of any kind was used. There is no guarantee today that if you have a baby circumcised, the doctor will use an anesthetic, although the major medical organizations recommend it

I am just suggesting that people not dismiss out of hand the idea that routine circumcision is not a good thing just because it is so widely practiced. Both the AMA and the American Academy of Pediatrics say, "Existing scientific evidence demonstrates potential medical benefits of newborn male circumcision; however, these data are not sufficient to recommend routine neonatal circumcision." It's unnecessary surgery. Also, the cost may not be covered by private medical insurance, and Medicaid does not cover the cost in 16 states.

Posted by: David Nickol | Nov 28, 2010 6:51:47 PM

This law is an obvious intrusion on the parents' duty to care for and to teach their children. The religious aspect is quite beside the point, since parents are not forbidden to teach their children religious doctrines and creeds. Circumcision is tantamount to teaching: teaching one aspect of what it means to be a Jew. Obviously, parents are not permitted to teach their children what it's like to fall twenty stories to the pavement. It's a matter of degree.

Many people express the view that it's wrong for parents to have their newborns baptized, on the grounds that that is a decision that the children can make for themselves when they are mature. I was chatting with a proponent of that line of thinking, who didn't like it when I agreed. In fact, I pointed out, I feel the same way about arithmetic. Let the child gain some maturity and then he or she will be able to decide for himself whether he really needs arithmentic. Now everyone does. I don't think Pablo Picasso was an avid practitioner, and he was certinly a roaring success.

Posted by: Joel Clarke Gibbons | Nov 28, 2010 9:11:43 PM

Joel,

Are you saying that unnecessary surgery on a newborn baby is constitutionally protected speech? That is certainly not Paul Horowitz's take on the proposed law.

It is one thing to teach a child something. It is another thing to surgically remove a living, functioning part. For the life of me, I can't see why pro-lifers don't have at least *some* sympathy for this proposed law. It means parents cannot do whatever they please to their children's bodies. If an unborn child has a right to life, I don't see why it is such an odd idea that a "post-born" child has a right to bodily integrity.

Posted by: David Nickol | Nov 29, 2010 2:10:44 AM

The issue is whether the State has the right to intervene in a family and religious decision like this one. Most Americans would say NO. Circumcision does not hurt the child and it is NOT up to the government to decide. We do not live in a dictatorship, yet. The State's rights over family live are limited. Even the UN agrees.

The Universal Declaration of Human Rights says:

Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 16.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 26.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 29.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Posted by: Fr. J | Nov 29, 2010 4:07:38 PM

Fr. J,

Article 3
Everyone has the right to life, liberty and SECURITY OF PERSON.

Being subjected to unnecessary surgery deprives a baby boy of security of person and a bodily part that can never be replaced.

Posted by: David Nickol | Nov 29, 2010 4:43:53 PM

David, I had my wisdom teeth out. Should my parents go to jail?

Security of person does not refer to circumcision. Just like there is no provision for abortion in our Constitution, but one was "discovered." You want government intrusion into family life because you think it is going to go your way. What if the government becomes run by the tea party? What if you are investigated by social services because you are raising your child with dangerous liberal beliefs that are contrary to her security of person? I think you would quickly come to my way of thinking. Read article 12 again, no arbitrary interference in the family.

Posted by: Fr. J | Nov 29, 2010 6:22:34 PM

@Fr. J: "Andrew, there is no legitimacy to the claim that an unborn child is not a child. She is. Tearing a baby apart in mutilation. I would remind you that this is a Catholic site, isn't it? If your son was taken and circumcised without your permission I bet you would have a problem with that. Children do NOT belong to the State. Their parents do have natural rights over them."

Your assertion that a fetus is a human being does not make it so. And yes, this is a Catholic site...are you suggesting that only certain views are welcome here?

Parents have natural rights over children? So, what you're saying is that children are at least partially slaves of their parents, by some vague appeal to "natural rights"?

Posted by: Andrew MacKie-Mason | Nov 29, 2010 6:41:41 PM

@Fr. J: "Andrew, there is no legitimacy to the claim that an unborn child is not a child. She is. Tearing a baby apart in mutilation. I would remind you that this is a Catholic site, isn't it? If your son was taken and circumcised without your permission I bet you would have a problem with that. Children do NOT belong to the State. Their parents do have natural rights over them."

Your assertion that a fetus is a human being does not make it so. And yes, this is a Catholic site...are you suggesting that only certain views are welcome here?

Parents have natural rights over children? So, what you're saying is that children are at least partially slaves of their parents, by some vague appeal to "natural rights"?

Posted by: Andrew MacKie-Mason | Nov 29, 2010 6:44:48 PM

Andrew, it is not just my assertion. I echo what the Christian religion and our own laws, until 1973, have stated. If I suggested slavery was a good and viable thing would I continue to be welcome here? Are you suggesting that children are slaves to the state, and their parents are too? Natural law does exist and protects us from real slavery. The state does not own our children nor does it own me.

Posted by: Fr. J | Nov 30, 2010 5:15:53 PM

Andrew, it is not just my assertion. I echo what the Christian religion and our own laws, until 1973, have stated. If I suggested slavery was a good and viable thing would I continue to be welcome here? Are you suggesting that children are slaves to the state, and their parents are too? Natural law does exist and protects us from real slavery. The state does not own our children nor does it own me.

Posted by: Fr. J | Nov 30, 2010 5:28:28 PM

Andrew, it is not just my assertion. I echo what the Christian religion and our own laws, until 1973, have stated. If I suggested slavery was a good and viable thing would I continue to be welcome here? Are you suggesting that children are slaves to the state, and their parents are too? Natural law does exist and protects us from real slavery. The state does not own our children nor does it own me.

Posted by: Fr. J | Nov 30, 2010 5:28:28 PM