The Recent California Circumcision Decision: A Miscarriage of Justice

Mike Gatto (D-Los Angeles), Fiona Ma (D-San Francisco and San Mateo Counties), left, Mark Leno (D-San Francisco) and Dr. Kenneth Tai at a press conference for Gatto's bill AB 768, Aug. 2011.

This summer, after spending four months obtaining 12,000 signatures, San Franciscans placed a bill on the ballot for vote in November that would have allowed male circumcision only when medically necessary.  The proposed bill was identical to federal and California law protecting girls from non-therapeutic genital cutting.  Ordinarily, citizens’ initiatives in California sail through to a vote, whatever the outcome.

In this case, however, Jewish associations brought suit in San Francisco Superior Court to enjoin the vote as anti-Semitic, a violation of the religious and parental right to circumcise, and of the state’s right to regulate medicine.  The San Francisco Medical Society, the City of San Francisco, and the ACLU, likewise represented by major law firms, “piled on” with last minute briefs.  In addition, during the litigation, a California legislator introduced Assembly Bill 768, endorsed by the California Medical Association, stating that male circumcision has a wide array of health benefits, and that no law can restrict a parent’s right to have a (male) child circumcised.  Circumcision advocates also have introduced a similar federal bill in Congress.   In short, all out war between David and Goliath broke out in California over whether parents have the right to circumcise their sons.

I regret to report that the California Superior Court judge removed the citizen’s petition from the ballot, and that Governor Jerry Brown signed the “parental right to circumcise” bill into law this October.  Both results are contrary to the law, and were a miscarriage of justice.

The Legislation

The claim by the California legislature that “[m]ale circumcision has a wide array of health … benefits”, and by the California Medical Association that “newborn circumcision [is] an effective public health measure” is simply false.  Circumcision does not benefit most boys or men at all.  (For example, it has a 1 in 100,000 chance of preventing penile cancer, which can be prevented by washing and not smoking, and we do not amputate girls’ breasts despite a very high risk of breast cancer.  Circumcision also does not prevent HIV or AIDS, as proven by the prevalence of those diseases in the United States.)  At best, circumcision has “potential benefits” for very few men, while any benefits can be achieved easily and inexpensively without it.  The fact is that circumcision is extremely painful, kills more than 100 boys per year, seriously injures many boys and men, and harms all men, such as by removing the most sensitive part of the penis and destroying its normal function.

Moreover, there is no religious or parental right to circumcise boys or girls.  In banning non-therapeutic female genital cutting, Congress found that such cutting was already illegal under federal and state statutory and constitutional law.  That is to say, children have a right to bodily and genital integrity.  Male circumcision violates the plain wording of California’s criminal child abuse and sexual abuse laws, which expressly apply to female genital cutting.  As to constitutional law, circumcising for religious reasons violates the right of every individual – including children – to choose his or her own religion.  The Supreme Court also settled in Prince v. Massachusetts in 1948 that while parents can martyr themselves, they cannot risk harming their children, let alone actually harm them and possibly kill them, for religious reasons.  Individuals also have a constitutional right to life and liberty, including freedom from unwarranted interference with one’s body, and to autonomy, or the right to pursue happiness however one chooses.  Individuals have a further constitutional right to privacy, including the right to make important decisions about one’s own body, such as the constitutional right of girls to an abortion (even though it kills a living organism).  The right to privacy surely extends to one’s most “private parts.”  Moreover, boys have a right under the United States and California constitutions to equal protection of the law.  In short, the California legislation is invalid as factually erroneous, contrary to California laws protecting children, and unconstitutional.

The Litigation
 
Attorneys Lloyd Schofield and Michael Kinane volunteered to represent the petitioners, but under tremendous time pressure obtained assistance writing the briefs from Doctors Opposing Circumcision and the writer.  As stated, ordinarily, California courts allow citizens' initiatives to proceed to a vote, reasoning that citizens have a “precious” constitutional right to petition the state; that laws involving health and safety fall squarely within a city's police power; and that opponents of ballot initiatives cannot show any harm, let alone irreparable harm, before laws have passed.  They reason further that the burden is on opponents to prove that a proposed law would be invalid or preempted by other laws, and usually decide such questions after the vote, if it passes, after full briefing and argument rather than in haste.

As DOC wrote in its brief, the proposed law was clearly valid under federal and state statutory and constitutional law, for the reasons given above.  DOC argued further that the freedom of religion clause does not give parents the right to make medical decisions for their children:  parents can only consent to medical treatment of their children, not to unnecessary surgery.  

Judge Loretta Giorgi rejected DOC’s brief and supporting documents as late, and thus did not read them, even though she accepted the San Francisco Medical Society’s brief filed just one day earlier.  She also issued a highly unusual preliminary ruling even before hearing.  Thus, her decision was a fait accompli.  Although Michael Kinane argued eloquently, the hearing was, as Attorney George Geisheker of DOC put it, “pure theater.”

The judge ordered the proposed initiative removed from the ballot on the grounds that it was preempted by California’s Business and Professions Code §460(b).  That statute provides, “(b) No city ... shall prohibit a healing arts professional [from] performing any procedure that falls within the professionally recognized scope of practice of that licensee.”  The only fact she noted was that circumcision is a common medical procedure.
 
The decision that the initiative was preempted by the business code was erroneous.  First, Section 460(b)(2) of the business code expressly allows ordinances involving health and safety.  Second, cutting healthy boys' genitals does not fall within the scope of medicine under California law, which defines it as the diagnosis and treatment of medical conditions.  Third, the presumption in California is against preemption, especially as here where it would "overthrow long-established principles of law."  Fourth, the purpose of preemption is to prevent a patchwork of laws.  The proposed law was necessary to enforce the many federal and state laws protecting children.  Section §460(b) by contrast – drafted by doctors and veterinarians to protect their turf, specifically unnecessary but lucrative procedures on adults or minors – violates many well established laws and is invalid.  Fifth, the judge ignored a California Court of Appeals decision holding that §460(b) did not preempt an ordinance banning the declawing of healthy animals, which requires amputating healthy bone, ligaments, and tissue.  The Court of Appeals in that decision reasoned that the "ordinance targeted animal cruelty not [the] regulation of veterinary medicine."  By extension, the California ordinance targeted cruelty and injury to children, not the regulation of medicine.

To summarize, the judge decided this important case in haste, before hearing, without reading the proponent's principal brief or any supporting documents, including Dr. Van Howe’s powerful affidavit, with virtually no legal analysis, and contrary to longstanding precedent.  She disregarded the right of citizens to be heard, the fact that circumcision is harmful, and the constitutional right of boys to equal protection of the law.  She accepted without question the self-serving “poison pill” physicians wrote into law, allowing them to continue any common medical practice, even painful, risky, harmful, non-therapeutic invasive surgery on healthy boys that no medical association in the world recommends.  By the judge's reasoning, citizens and cities could not stop physicians from injuring and killing children by drilling holes in their brains — depicted in cave paintings, like circumcision — if that too had remained a common procedure.  In short, the California decision ignored children’s rights, and ascribed rights to physicians and parents that they do not possess.

Implications

The legal battle in California makes clear that physicians who make money from circumcision (and their trade associations), and parents who consider circumcision to be a sacred rite commanded by their god, will band together, hire the finest attorneys, and do whatever is necessary to perpetuate the practice throughout the country.  This includes claiming that circumcision is beneficial when it is harmful, and that parents have the right to circumcise their boys when they don’t.
 
As a practical matter, intactivist attorneys did not have the time or resources to mount a proper appeal of the Superior Court decision (which fortunately has no precedential effect), or to attack the California legislation at this time on constitutional grounds.  Certainly it would be useful to hire a prominent law firm and constitutional scholar to help fight these important legal battles.  But although the California decision and new legislation are certainly a setback, and the pending federal legislation is cause for concern, the law is on our side.  One day a judge will bother to read our briefs and supporting affidavits.  Instead of starting with the fact that circumcision is commonplace – really? – he or she will start by noting that both female and male genital cutting are risky and harmful, and that adults rarely choose genital cutting for themselves.  Ultimately, inevitably, courts will conclude that boy’s private parts are entitled to the same protection as girls’.