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Some More Thoughts on Deadly Risks to Which Parents Expose Their Child:

I've thought some more about the matter I discussed in my "bloodsucking circumcision" post, and while I still on balance take the view that I described there, I thought it might be helpful to discuss why this question is complex, and what the counterarguments to my view (which is that the practice can and should be banned, if it is indeed dangerous) might be.

1. Magnitude of the Risk: It's impossible, given the data I've seen, to know for sure what the risk of death here is. The New York Times story reports on one death from infant herpes that was apparently linked to the practice of the mohel's sucking the blood from the wound after the circumcision, plus two nonfatal cases, apparently some time between 2003 and 2005. It also reports on New York cases from 1988 and 1998, which apparently weren't fatal (or else I assume the article would have said so).

The article also says the practice is done "more than 2,000 times a year in New York City"; the known death rate thus seems to be about 3 per 100,000 or so, though the true death rate may of course be higher, since it's not clear that all the deaths that might be linked to circumcisions are reported in an easily aggregatable way, or lower, if the practice is more common or if in earlier years there were no deaths (or if it turns out that the herpes in this case stemmed from some other cause).

One possible argument is that the law simply shouldn't protect children against such small risks imposed on them by their parents. Even if it's wrong for parents to expose the children to such risks, at least in some situations, extra regulations of parents have their costs. Just to take one example, say the practice is outlawed, but many parents (though not all) nonetheless continue to knowingly or deliberately use mohels who employ it; and the law is enforced against parents on at least some occasions, usually in cases where the child didn't die (but could have). If parents are imprisoned as a result, the aggregate harm to such parents' other children from the temporary loss of one parent -- and the longterm loss of family assets that would come from the imprisonment -- may ultimately exceed the harm that the law avoids. More broadly, such restrictions on parents aimed at preventing small risks to children may be quite counterproductive; maybe we should forswear governmental power to impose all such restrictions, again when they're aimed at such small risks.

Note, though, that a 3 in 100,000 risk of death from a single act is not chopped liver. Here's an analogy, though you decide for yourselves which way it cuts: In 1981 -- which, to my knowledge, was before infant and toddler car seats got popular -- the yearly risk to babies age 0 to 4 of death in a car accident was 3 per 100,000. If we suppose a requirement that all children under age 5 be put in infant or toddler car seats, and we assume that such seats reduce the risk of death by 20% (I pulled the number from thin air, I confess), that means that the legal mandate of car seats likewise reduces the death rate by 3/100,000/year x 5 years x 20% = 3 in 100,000. Do you think this risk is too small to justify government mandates? I don't know for sure myself, but I leave it to you to consider the analogy. (Note also that the car seat requirement imposes modest financial costs but substantial effort on parents, given that many parents must use the seats nearly every day for 5 years, rather than just one day in the child's life.)

Always remember, of course, that this isn't just a person's deciding to risk his own life. It's a person's deciding to risk someone else's life. As a moral matter, it seems to me that even libertarians should recognize some possible role for the law to step in to prevent such risks, at least at some level (though, as I suggest above, some might conclude that as a practical matter, government intervention may do more harm than good).

2. Religious freedom: But of course there may be more in play here than just the risk the practice imposes on the child, and thus the potential benefit of the law. There's also the potential cost of the law. One reason my reaction is so hostile to the practice we're discussing is that I see it as imposing a modest risk for no benefit. It's one thing when parents impose a risk because there are substantial countervailing advantages to the child, or even to themselves. It's another when the risk seems so pointless.

But of course it's not pointless to many Orthodox Jews -- to them, the benefit, which is obeying God's will, is vast, likely far greater than the danger. This isn't so for all Orthodox Jews, apparently: Many of them think that the important thing is the circumcision, not the particular way the blood is removed; and some others might think that part of God's law is that other laws should be waived to prevent serious risk to life and health (query what the threshold of seriousness is). But other Orthodox Jews do seem to see the practice as religiously mandated. And just as the practice has huge benefits for them, so complying with any ban would impose huge costs for them.

How should the legal system deal with this? One tempting answer is that the legal system must respect the religious group's view of the religious costs. We let parents impose risks on children for certain secular benefits: For instance, if a child has a significant cosmetic defect, I assume we'd think the parents have a right to get the child surgery to correct it, even if the surgery poses some small risk. Likewise, I take it that we wouldn't ban parents from moving to a dangerous part of town, if they feel a need to (for instance, if they are ministers who want to minister to people in that part of town), even if we could show that this would increase the child's risk of being the victim of a homicide over the first 18 years of his life.

Similarly, the argument would go, if we're willing to let people risk their child's life to improve the child's appearance, or to further their own careers or religious callings, we should certainly let them risk their child's life to comply with God's law (which might provide him vast spiritual benefits, though I'm not sure whether that's exactly how Orthodox Jews would characterize compliance with the law).

Yet I don't find that persuasive. We may sometimes let a parent impose even greater risk on a child's life. Say, for instance, that a child is facing a risk of very grave loss of quality of life -- he has a condition that might render him a quadriplegic, or moderately brain damaged. There's surgery available that might avoid this harm, but it involves a 25% chance that the child would die. Naturally, that's a tragic choice, but I doubt that we'd forbid the parent from running that risk (or if you think 25% is too high, think 5%).

Now a religious person says: If I don't expose a child to a 25% risk of death, the child will face not just loss of quality of life, but eternal damnation (loss of quality of afterlife?). I think the child is possessed, for instance, so I need to perform a very dangerous exorcism; or I think that it's necessary for him to drink strychnine in order to be saved. (One religious group did indeed drink strychnine for religious purposes, and this caused some deaths; I'm not sure that they saw such drinking as actually required for salvation, but say they did.) Damnation is a far greater harm in my book than mere paralysis or moderate brain damage. And religious freedom means that the law must treat my estimate of the religious costs of a practice the same way that it treats its own estimates of secular costs.

Can the religious person's argument be right? Surely it can't be, I think; surely we are entitled to prevent him from risking his child's life this way. But that means that the law must explicitly or implicitly ignore his view about the cost of damnation, and the corresponding benefit of the exorcism, and instead limit itself to secular costs and secular benefits (as in the operation-to-avoid-quadriplegia hypothetical).

3. A combination: This leaves one other possibility: Maybe the law should value religious freedom to some extent, but not too much. If the benefit of a law is eliminating a 3 in 100,000 chance of death, and the cost is nil, then the law should be enacted (subject to the practical questions I noted above). But if the benefit is eliminating the 3/100,000 risk, and the cost is interference with religious freedom, then the law shouldn't be enacted. On the other hand, if the benefit is eliminating a 3/10 risk or a 3/100 risk or even a 3/1000 risk, and the cost is interference with religious freedom, then the law should be enacted. The parents' freedom to do what they think their religion commands, and what they likely see as being for the religious benefit of the child as well as for their own religious freedom, thus counts for something but not for everything.

There's underniable appeal to this, it seems to me -- but is it just the appeal of compromise for the sake of compromise, or does it actually make moral sense? For instance, how do we figure out whether religious freedom should be valued at 5% of life, 0.5%, or 0.05%? Also, why should the parents' religious views justify the imposition of even modest burdens on the children, who may ultimately have their own views, and who now have no religious views (at least from our secular legal system's perspective)?

In any case, all this leads me to still tentatively think that the practice probably should be banned, if it does indeed pose a risk to infants' lives. But I hope it helps illustrate why the matter is more complex than it may at first appear.

Incidentally, if you're wondering, the reasons that I take a different view with regard to parents' potentially harmful teachings of children -- even when the teachings may eventually (and not just imminently) lead the children into dangerous behavior -- are described in Part III of my Parent-Child Speech and Child Custody Speech Restrictions.

Related Posts (on one page):

  1. Some More Thoughts on Deadly Risks to Which Parents Expose Their Child:
  2. "Bloodsucking Circumcision,"
SimonD (mail):
This may be fairly abstract to the topic, but I have a hypothetical. What if the question was over female circumcision, as practised in various parts of Africa, where the clitoris and surrounding tissue is removed? If the practise isn't banned in America, it should be, and I doubt that the fact that it might offend someone's religious practise would be taken much into account.

Whatever the free excercise clause might mean, I don't think it meant that people could do irreparable physical harm to their children. Likewise, if you have legal guardianship of a child, do you have a legal right to perform other kinds of unnecessary cosmetic surgery? Why stop at circumcision? What is the limit on what harm a parent can do to a child?

We would not accept the mutilation of young girls, no matter how strong the religious convictions of the parent. Why would we accept the mutilation of young boys?
8.31.2005 3:10pm
Dilan Esper (mail) (www):
It seems to me that one thing that Professor Volokh doesn't mention that would strengthen his argument is the fact that this practice runs afoul of generally applicable laws prohibiting oral-genital contact between adults and infants, and that these laws are justified by entirely compelling interests.

In other words, it is not only the increased risk of disease or death that should be considered, but also the possible harm to children from recognizing a religious exemption to sexual abuse laws (and the recent events regarding the Catholic Church are not irrelevant to this question).
8.31.2005 3:38pm
jdub:
Two thoughts: First, there is no comparison between female genital mutilation, which often involves the removal of the clitoris, the outer labia, and results in complete loss of sexual feeling for girls, and often causes tremendous complications, and the removal of the foreskin, which (as a circumcised male) has had no effect on my sex life or urogenital health.

Second, many of the laws prohibiting oral-genital contact with minors include a requirement that it be done for sexual purposes (I can't quote exact language here). So, if there is no sexual intent, but a religious one, I don't necessarily see a violation. There's no intent to titillate. (Cf. the old joke about the guy bitten on his johnson by a rattlesnake, his friend calls a doctor and says "what should I do?" doctor says "suck out the venom" and the friend sadly shakes his head and tells the victim "the doctor said you're going to die.")

That said, as an Orthodox Jew, I am firmly opposed to direct mouth to genital contact for metziah b'al peh. If it's to be done at all (which I question the necessity of), an intervening tube should be used. I've never seen it done at a bris, and will confirm, if I have another son, that it isn't done.
8.31.2005 3:57pm
jdub:
Two thoughts: First, there is no comparison between female genital mutilation, which often involves the removal of the clitoris, the outer labia, and results in complete loss of sexual feeling for girls, and often causes tremendous complications, and the removal of the foreskin, which (as a circumcised male) has had no effect on my sex life or urogenital health.

Second, many of the laws prohibiting oral-genital contact with minors include a requirement that it be done for sexual purposes (I can't quote exact language here). So, if there is no sexual intent, but a religious one, I don't necessarily see a violation. There's no intent to titillate. (Cf. the old joke about the guy bitten on his johnson by a rattlesnake, his friend calls a doctor and says "what should I do?" doctor says "suck out the venom" and the friend sadly shakes his head and tells the victim "the doctor said you're going to die.")

That said, as an Orthodox Jew, I am firmly opposed to direct mouth to genital contact for metziah b'al peh. If it's to be done at all (which I question the necessity of), an intervening tube should be used. I've never seen it done at a bris, and will confirm, if I have another son, that it isn't done.
8.31.2005 3:57pm
Eugene Volokh (www):
I have a separate post on the male circumcision / female circumcision question here. If you want to comment on that question, you might want to comment there.
8.31.2005 4:06pm
Milhouse (www):
Eugene, your statistic of 3/100K is completely meaningless. Even if we were to stipulate that the one fatality reported was actually caused by this ritual (a claim which is highly contentious), you are still extrapolating a curve without even two data points to hold up the ends. You seem to be saying that since, in 17 years, we have one reported fatality, we should just add up the number of times the ritual has been done in those 17 years, and take the risk as 1 in that many. But why do you project it over 17 years, and not 50 or 100? For all we know, if this fatality was indeed caused in this way, it may be the only case in history. So we have no basis for assigning a risk factor at all, except to say that it is very small.

What's more, I don't know where you got the figure of 2000 a year; I have no statistics, but it seems impossible to me that it should be that low. The Orthodox population of NY State (which is the relevant jurisdiction) is over 500K. A majority of those believe that oral suction is necessary, and that segment of the O population has a far higher birth rate than does the segment that is prepared to dispense with oral suction, or to use a tube. So we're talking perhaps 25K families, who average a male birth every 3 or 4 years; taking into account those who are infertile, or who are past childbearing years, perhaps we can extend that to 1 every 5 years, and that's still 5K a year. Crown Heights alone, which is quite a small fraction of the total population we're talking about, seems to have about 200-250 circumcisions a year, all of which use oral suction with no tube. The number in Borough Park, Flatbush, Williamsburg, etc, must be far greater. So even taking your formula of one fatality per 17 years, that produces a risk of 1/85K, or 1.1/100K.

At that level, pretty much anything a parent chooses to do carries a similar risk. If you are prepared to ban a religious practise that carries a risk of that magnitude, because you see no countervailing benefit to the child, then surely you must ban parents from driving their children to church on Sundays (or walking them to shul on Saturdays), since they are taking the risk of being killed in a car accident (or being hit by a car), without any benefit you're willing to recognise to justify it.
8.31.2005 4:29pm
Bub Frawley:

If we suppose a requirement that all children under age 5 be put in infant or toddler car seats, and we assume that such seats reduce the risk of death by 20% (I pulled the number from thin air, I confess), that means that the legal mandate of car seats likewise reduces the death rate by 3/100,000/year x 5 years x 20% = 3 in 100,000.


I think this argument suffers from a post hoc fallacy. Why assume the statute caused the fall in child death rates? It seems equally plausible that (a) vehicles were becoming safer, and (b) people were simultaneously increasing their voluntary use of car seats. Child death rates would likely have fallen as much, or more, without any change in the statute.

It is not uncommon for regulators to spot a healthy social trend, enact a statute to "push" that trend along, and then take credit for any subsequent improvements.
8.31.2005 4:48pm
Clint:
It seems like an enormous overreaction to ban a religious ritual because it can be dangerous under certain rare circumstances (where the mohel is having an oral outbreak of an STD). Can't we think of any more narrowly tailored solutions?

First, without imposing on anyone's religious freedom, couldn't the State simply require that anyone performing such a ritual have regular tests for diseases which could be transmitted through such a ritual? And wouldn't this completely solve the problem?

Of course, setting up an entire licensing agency and keeping files on such tests still seems like alot of inefficient government busywork, so...

Second, couldn't the entire problem be solved by holding a mohel who manages to transmit a disease in this manner legally negligent in civil court? Even the suggestion (perhaps explicitly legislated?) that the religious organization that certifies a mohel would be held financially responsible in civil court (for a wrongful death suit involving an infant!) would almost certainly be more effective than anything else the State could do.
8.31.2005 4:50pm
Milhouse (www):
Just to clarify: I think the main right involved here is not the parents' 1st amendment right to the free exercise of religion, so much as their 9th amendment right to raise their children as they see fit. While it is clear that at some point the state must step in and say that what you are doing is clearly not in the child's interest, the threshold for such intervention must be very high. If you would not prevent parents from taking a child mountain climbing or hang gliding, or from having a (properly fenced and secured) swimming pool, then I submit that you can't prevent them from having their children handle snakes, or from not vaccinating them, or from exposing them to the infinitesimal risk that oral suction seems to pose.

==============================================

You also haven't properly addressed the fact that enforcement of any ban would be far more difficult than you assumed in your initial post. Indeed, the primary effect on the Orthodox community would be to foster contempt for the law in general; when the law is the enemy, when britot must be conducted in secret in order to avoid arrest, children cannot help but grow up with the attitude that there is no reason to obey any law. My father's memories of growing up in the USSR in the 1930s and '40s bear this out.
8.31.2005 4:58pm
Milhouse (www):
couldn't the State simply require that anyone performing such a ritual have regular tests for diseases which could be transmitted through such a ritual? And wouldn't this completely solve the problem?
As I understand it, mohalim already do this, without any regulation requiring it. They have their own professional reputations to think of, as well as the normal human concern for the welfare of the babies. And the mohel who is accused in this case has a very high reputation. Both he and the parents of the boy who died in 2003 claim that the rash was there before the circumcision, and that the baby's doctor examined him and gave the OK to go ahead with it. If this is true (and I haven't heard anyone contradict it), then this whole story is a beat-up, and we shouldn't even be discussing it.
8.31.2005 5:06pm
Columbienne:
Quick factual correction -- basically all adults have the oral herpes virus. It's not rare, and it's drastically incorrect to call it an "oral STD." Testing mohels for the virus would be pointless, but examining them for active cold sores would be a good idea.
8.31.2005 6:32pm
Dilan Esper (mail) (www):
Jdub:

I am not sure if New York requires the intent to gratify in its child molestation statutes or not. I certainly don't think that the government is required to include a specific intent requirement that might make proof more difficult even with respect to guilty to defendants (because defendants would argue that the contact was done for some other non-gratificatory purpose). So whether New York HAS prohibited this conduct, they certainly CAN prohibit it.

What you miss is that there is a context for this, and it is the fact that upholding the principle that society is NOT going to allow religious justifications for oral-genital conduct is quite beneficial given the amount of actual sexual abuse that has gone on under religious auspices (not only the Catholic Church, but also fudamentalist, polygamous Mormon groups, the Branch Davidians, etc.). Moreover, the Catholic Church has been asserting alleged privileges that are based on the claim that civil authorities have limited power to investigate internal church responses to child sexual abuse.

Having a blanket rule that religious justifications will not be accepted with respect to this conduct would seem to me to be a perfectly rational response to this problem. It not only ensures that those who engage in overtly sexual acts with children under the guise of religious practices will be less likely to escape punishment, but it also allays charges of religious favoritism.

Thus, whether this particular procedure is relatively harmless, even if true (and Professor Volokh, it seems to me, is quite persuasive that the procedure is NOT harmless), is not dispositive on the issue of whether it should be banned. I think it is abundantly clear that government has the power to prohibit all oral-genital contact involving an adult and a minor without a religious exemption, and I think it is a good idea to do so.
8.31.2005 6:35pm
Dick King:
Just a brief note re Milhouse's post.

Vaccination is different from the other mentioned slightly risky acitivities because it involves risks to the community as a whole. Note that the law does not require vaccination -- it only typically requires vaccination before the large numbers of other children are exposed to the child. You can usually refuse to vaccinate your child if you home school.

-dk
8.31.2005 6:46pm
Columbienne:
Dilan - Under your thinking, we should just ban all adult contact with children's genitals and have the kids change their own diapers.
8.31.2005 6:52pm
Jeff Licquia (mail) (www):
Implicit in this whole discussion is an assumption that the state has a higher vested interest than the parent in the child's best interests. Put another way, the state cares about the child's welfare more than the parents do.

You can make the case that this is true generally, or that it is true only in this specific instance.

If the former, why does our society allow anyone to raise their own kids? Indeed, government care is so frowned upon that we attempt to mimic family life in our foster care system rather than set up big public orphanages.

If the latter, then why are the families whose babies died not being prosecuted?
8.31.2005 7:01pm
Milhouse (www):
Dick King: yes, I know the law, in most or all states, does not currently require vaccination. Nor does it currently ban oral suction at circumcisions. And I'm arguing that that is how the law should stay. If we are to interfere with parents' decisions on how to raise their children in the presence of small but definite risk, then it seems to me that parents who decide not to have their children vaccinated will be among the first to be hit. And at the level of risk posed by non-vaccination, I'm not 100% sure they shouldn't be, except that it's a slippery slope I don't want to start down.

Oh, and if one kid in the class isn't vaccinated, then he's not really posing a danger to the other kids, because they've all been done. It's his own danger that's increased when he goes to school and is exposed to whatever the other kids are carrying. If there are two unvaccinated kids in the class, then they're also in danger of infecting each other, but since both sets of parents have decided to bear that risk, the moral calculus doesn't really change. So long as the overwhelming majority of parents are sensible and responsible enough to vaccinate, we can tolerate a small minority who resist, in the name of protecting everybody's liberties and keeping Leviathan from the door.
8.31.2005 7:07pm
Jeff Licquia (mail) (www):
Dilan, the difference between the Catholic sex scandal and the Jewish circumcision rite is that the Catholics do not consider sex between children and priests to be a part of their religious tradition. Thus, I fail to see how priestly sexual abuse could possibly be covered by a religious exemption.

(Not that I wouldn't put it past them to try, mind you, but that the attempt doesn't bring up the same church-state problems as the circumcision cases do.)
8.31.2005 7:09pm
Penta:
Milhouse: The problem is that herd immunity is of no consequence after the percentage of a population immunized drops below a certain point. Also, many of these diseases require booster shots. What if an unvaccinated carrier infects a kid who was vaccinated, needs a booster shot, but (due to a quirk of schedulimg, timing, or sheer bad luck) has yet to recieve the booster shot?
8.31.2005 9:05pm
Dr. T:
Dick King said: "You can usually refuse to vaccinate your child if you home school."

That, unfortunately, is not always true. Virginia allows home schooling only after a registration process that includes a requirement for vaccinations. This includes vaccination against hepatitis B, a disease that is transmitted only through blood contact or sexual activity. The only vaccination exemptions in Virginia are medical (a physician must certify that your child would be harmed by the vaccine) or religious (you must belong to one of the rare recognized religions that forbids vaccinations).

I agree that parents should not be allowed to deliberately endanger children, but "endanger" should mean very high risk of harm, not a 1 in 100,000 chance of death. As others indicated, this would place tremendous restrictions on parents. I also contend that it would damage our society, which has become far too risk averse. We cannot put our kids or ourselves into protective bubbles.
8.31.2005 9:19pm
Milhouse (www):
Penta:
The problem is that herd immunity is of no consequence after the percentage of a population immunized drops below a certain point
That is exactly why I said we could tolerate objectors "so long as the overwhelming majority of parents" continue to vaccinate. If refusal becomes widespread, other measures might become necessary and justified, though by the same token if refusal becomes widespread it would behoove us to examine carefully whether there might not be something to the objections.
8.31.2005 9:47pm
a Catholic dad (mail):
If anyone wants to take the vaccine tangent into yet another sub-tangent, I'll note that some of us object to certain vaccines because they are made from aborted humans. If it's all about protecting the kids, well, I simply don't want to "protect" my child with the blood of another child. And Big Brother would have to violate my Second Amendment rights along with my First Amendment rights to make me do anything different.
8.31.2005 9:53pm
Columbienne:
Ok, I'll take the bait - Catholic dad, the thought that you would not vaccinate your children because the cell line derived from a decades-old abortion is reprehensible. I've got no problem with seeking out non-fetal vaccine lines if they're available, but the greater good is obviously vaccination if you can't find an alternative. Reasoning like yours is the reason I'm not Catholic anymore -- the fetisization of theoretical "life" to the detriment of actual life.
9.1.2005 1:06am
Syd (mail):
I think you need to consider the possibility that the child may get encephalitis from the herpes, which can cause brain damage even if the child doesn't die.
9.1.2005 2:34am
OneEyedMan (mail) (www):
Other things with 3 in 100,000 risk
"to screen for cervical cancer can be extended to once every 3 years, instead of every year, among low-risk women with three consecutive negative Pap tests...was associated with an average excess risk of cervical cancer of 3 in 100,000."

"The concentration of arsenic in the soils of the San Francisco Bay Area are relatively high in comparison to the rest of the country, in the range of 13 - 22 mg/kg. At 13 mg/kg, the increased lifetime cancer risk is...3 in 100,000"

"About 3 in 100,000 men per year develop testicular cancer, and it is the most common cancer in young men between the ages of 15 and 35 years old."

"About 3 in 100,000 kids given the combined vaccine for diphtheria, tetanus, and pertussis develop breathing difficulties or seizures. Just 1 in 100,000 kids vaccinated against measles, mumps, and rubella develop high fevers or some loss of consciousness. By way of comparison, 11 of 100,000 pregnant women die in childbirth."

"Monochromatism or achromatopia, in which distinctions of hue cannot be made, is very rare (2 to 3 in 100,000 males and females)."

"In the United States, bacterial meningitis affects about 3 in 100,000 people each year, and viral meningitis affects about 10 in 100,000."
9.1.2005 10:49am
jdub:
Dilan:

You're right, they could ban all oral-genital contact (other than my rattle-snake example?), regardless of intent. If the specific intent of the legislature was to prohibit metzitza be'al peh, would that run afoul of the Santeria case (what was it, the Church of Babalu Ai, or whatever it was called)?

In any event, unless the state is going to post monitors at every bris, the law would be honored only in the breach. That said, I support the Rabbinical Council of America's position, which strongly urges the use of an intervening tube. This is a silly area for government intrusion, IMO.
9.1.2005 11:37am
Walter:
Back to the child restraints (a subject on my mind after my recent 2,000 mile road trip with a 4-year-old). I understand the difference between statistics and anecdotal evidence, but I can't help but think that the vast majority of my peers failed to use (let alone properly use) restraints while growing up. Given that the number of deaths are so small in total, I wonder if there is a tradeoff between accident avoidance and accident survival in certain circumstances.

Specifically, at Interstate speeds (60-80 MPH) and low traffic situations (10PM - 6AM), is any real value served by having children in restraints rather than lying down in the back of a station wagon or van? (Perhaps someone could pull the source data from one of the reports referenced in the summary linked below?). My personal experience is that the driver is more likely to be distracted by an uncomfortable child. Statistics indicate that survivability at those speeds are low regardless of protective measures, so it would seem that avoidance would be the best course.

OTOH, given the mortality rates, shouldn't we ban people from using private transportation? It would save 40,000 lives per year and have beneficial effects on the environment and military deaths in the Middle East. It would significantly impact people's lives outside of major metropolitan hubs, but won't someone think of the children?


Child Passenger Safety: A Review of Post-1996 Trends is a good overview of the statistics in the area. It cites studies which support its conclusions.

A highlight:

Child safety seats, when properly installed, reduce the risk of death by 71 percent for infants and 54 percent for toddlers in passenger cars. From 1975 through 2003, an estimated 7,020 lives were saved by the use of child safety restraints. In 2003, among children under five years old, an estimated 466 lives were saved by child restraint use.

Related:
Many safety experts believe that between 80 percent to 90 percent of child safety seats are installed and/or used incorrectly.

Apparently child safety seats are more complex to use than the cars themselves or the vast majority of people are flouting the law by intentionally failing to install them correctly.
9.1.2005 1:47pm
Dilan Esper (mail) (www):
Columbienne: I don't think anyone engages in oral-genital contact when they change diapers.

Jeff: That's a legitimate distinction, but there's nothing wrong with writing the laws so that courts don't have to determine what is "central" to the religion, which is the type of question that courts are relatively unsuited to answer. And remember there are religions, besides this particular rite, where the sexual abuse IS central to the religion (e.g., fundamentalist Mormons, Branch Davidians).

jdub: Since the Legislature's intent is to ban child sexual abuse and not to single out Jews, there is no chance that the Church of Lukumi Babalu Aye would apply-- rather, it would fall under Employment Division v. Smith. (Indeed, even if the pre-Smith compelling state interest test were used, I still think that the state can ban all oral-genital contact because it meets strict scrutiny.)

As for the snake venom hypothetical, seems to me that MEDICAL necessity is quite a different issue from alleged religious necessity.

Finally, I don't think the "it's unenforceable" claim is worth anything. First, I am not sure I buy it-- how do we know that some people wouldn't abide by the law? Indeed, there are many laws that at least some people obey even though nobody would catch them if they broke the laws. And further, this is a matter of tremendous importance. In truth, if you have heard the number of people who say they were molested as children, we catch only a small percentage of child molesters generally. Much of it is done by parents or close relatives, goes on in private, and is never prosecuted. It seems to me the compelling reasons for prohibiting oral-genital contact between adults and children have NOTHING to do with how effective enforcement is.
9.1.2005 2:04pm
Milhouse (www):
Jdub, this isn't the proper forum for discussing the inherent merits of the pro- and anti-suction arguments, so I haven't gone into that, but you keep citing the RCA as if it were an authoritative body. The RCA is an organisation of pulpit rabbis, not legal authorities, and its pronouncements on matters of technical law don't carry much weight, especially in that segment of the O community (a majority in NY) that currently practises suction.
9.1.2005 2:21pm
Milhouse (www):
Dilan: "how do we know that some people wouldn't abide by the law?" We have 3300 years' history of not abiding by the law, when it comes to restrictions on brit milah. Those who don't think direct oral suction is essential don't do it anyway; those who do it beleive that it is essential, so they'll keep on doing it. If we weren't deterred by Antiochus, Hadrian, or Lenin and Stalin, we certainly won't be deterred by the State of NY. (Yes, jdub, I know, you're going to say she'at hashemad is different, but this isn't the proper forum for discussing estoteric details of Jewish law.)
9.1.2005 2:32pm
MiniVan Driver:
The cost of car seats is negligable, but the cost of accomodating them is not always so. They are large. It was impractical to fit three carseats in a Subaru; 3 children would fit easily. Now we have a minivan.

Its costing us about $800/year to have car seats.
9.1.2005 2:58pm
Dilan Esper (mail) (www):
Milhouse:

You have no evidence at all, only conjecture, that everyone who practices this would continue to do so if it were clearly illegal.

But more importantly, I think you engage in a tremendous fallacy when you compare forbidding a mohel from putting his mouth on an infant's genitals to oppressive regimes that prohibited Jews from practicing their religion or even maintaining their identity.

There is, in the end, a huge difference between a government that seeks to stamp out Judaism-- ALL Judaism, including Orthodox, Conservative, Reform, and even "secular" Judaism-- and a government that prohibits one practice that is unsafe and that bears a striking similarity to sexual contact between adults and infants.

The fact that many Jews heroically resisted efforts by governments to eliminate them and their faith should not be compared to someone's objection to a law that prohibits an adult from putting his mouth on an infant's genitals. They are simply not comparable, and it cheapens the scope of the oppression that Jews have faced throughout history to suggest such a comparison.
9.1.2005 5:00pm
OneEyedMan (mail) (www):
Columbienne said that "basically all adults have the oral herpes virus" I asked a doctor whether is was true, because that sounded a lot higher then I recall reading.


"HSV-1 is transmitted from person-to-person via infected oral secretions during close contact. Infection occurs worldwide, equally between the sexes, and without seasonal variation. In the United States, there are estimated to be approximately 500,000 primary infections per annum"

"Worldwide, more than 90 percent of people are seropositive for
HSV-1 by the fourth decade of life, especially those of lower socioeconomic groups [3]. This pattern was also present in the United States during the 1940s and 1950s; however, the prevalence rates for people from industrialized countries and middle class societies have been declining. In more recent studies in the United States, for example, 40 to 63 percent people were seropositive for HSV-1 [3]"

So finding a Mohel that isn't a carrier shouldn't be too difficult.
9.1.2005 7:10pm