Sorry for the delay responding -- I was working on a cert petition all
week, and just handed it off to my cite-checker.
As list readers might recall, my position was not that circumcision
restriction would be justified. Rather, I wrote, "From what I understand,
think the health arguments for circumcision are substantial, and, as I've noted
before, to the extent that parents are making a medical choice in favor of
circumcision, I think it makes sense to defer to their judgment, just as it
does for other medical choices. Likewise, I'm inclined to say that if there
was reason to think (though also reason to doubt) that circumcision would
enhance sexual function, parents could also reasonable choose that as a medical
matter.
"The interesting question, I think, is how we should resolve
the matter if (1) the medical consensus comes to be that there was no medical
benefit of circumcision and no sexual function benefits, but (2) there comes to
be no consensus on whether there is a sexual function cost. My inclination
would be to say that the uncertainty should not be resolved in favor of
parental choice, but rather resolved in favor of patient choice: the principle
that - absent medical need - practically irreversible and potentially harmful
surgery should not be undertaken without the actual consent of the adult
subject of the surgery."
The AAP decision reinforces my understanding that "the health arguments
for circumcision are substantial," though we have to recognize, I think, that
the matter is still up to debate, with different views being expressed by
organizations in different countries. Moreover, the medical understanding may
well change with time, as there is more research into the connection with
sexual function, more research into the connection with disease, and changes in
other disease-related factors -- for instance, if a major medical plus of
circumcision is greater protection against some diseases, then the develop of a
new and effective immunization against the disease may reduce this marginal
plus.
As to the philosophy, more in a separate e-mail.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, August 27, 2012 11:36 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: New circumcision policy statement from the AAP
>
>
> Eugene --
>
> I have to respectfully continue to disagree with your approach to this issue,
> as well as your assessment of the effect of the AAP decision on your
> argument:
>
> Previously I think you had offered both medical and philosophical/legal
> reasons for why you felt a circumcision-restrictive position would be
> justified.
>
> At this point your proffered medical reasons no longer serve as support for
> your legal position. The AAP decision does not say that it is wrong for
> parents
> to fail to circumcise their children, but the medical nod (including as to
> issues
> of sexual sensation) now goes to circumcision as opposed to non-
> circumcision. You say that there is disagreement among doctors overseas,
> but I am not aware of any medical association overseas that has conducted a
> similar multi-year study to the AAP's and reached a contrary conclusion. And
> it is a commonplace that circumcision is medically indicated in many parts of
> the world (e.g. sub-Saharan Africa).
>
> There are of course advocates on both sides, including licensed doctors, but
> the great weight of international medical opinion seems to be on the side of
> circumcision in both developed and developing countries. And the AAP is I
> believe the largest (and perhaps the most respected) pediatric medical
> association in the world. As for future changes, it seems quite speculative
> for
> you to say "if the medical evidence eventually ends up being contrary" when
> the AAP has moved closer to the circumcision-positive end of the debate
> after taking into account both the vigorous criticisms of circumcision and and
> making a multi-year study of the entire medical literature in the area. In
> short, at this point you bear the burden of overcoming medical opinion that
> favors circumcision. Thus your previously-offered medical reasons provide no
> support for your position and you now have a new medical hurdle to
> overcome.
>
> That leaves you with what I refer to as legal/philosophical reasons. Your
> second line of argument was couched in legal terms, but I think it is really a
> species of political philosophy. It goes directly to questions about whether
> individuals and associations of individuals and their
> rights/privileges/immunities precede the state or whether the state has
> some sort of defining role in the first instance that regulates all
> interactions
> outside of monadic individuals, as indicated by your use of the word
> "delegate." Here is where I pushed back on you in the original discussion and
> I am pretty sure you never answered: Your position presupposes ideas about
> the individual and his/her relation to the state that I don't think most
> Americans, most people on this list, or the American political system agree
> with. Most people do not agree that the state has powers over children in
> the first instance and then delegates those powers to parents. History,
> tradition, and American political and legal philosophy (and most Western
> analogues) conceive of parents as having pre-existing rights and duties
> towards their children that the state must justify interference with. Perhaps
> mainstream libertarian thought now valorizes the individual so much that
> familial and other associations are an afterthought, but if that is so, it is
> not
> mainstream American political philosophy.
>
> What does the lack of acceptance for your premises mean, practically
> speaking, for this discussion? The fact that yours is a generally unaccepted
> position does not mean that you can't argue it. People can come on the list
> and argue that religion is the opiate of the masses and therefore the
> category of religious liberty should be a null set, so why are all of you
> wasting
> your time here? But to argue in a way that is convincing and has a claim on
> the responses of others, you need to back up to premises that are generally
> accepted by those on the list. Otherwise you aren't making arguments, but
> assertions dressed up as arguments.
>
> You say that the state delegates powers to parents to take care of their
> children. This idea is foreign to American political philosophy. The
> Declaration
> of Independence, the Federalist Papers and much of American political
> philosophy since (cf. Gettysburg Address, Letter from a Birmingham Jail)
> reject statist positivism. The state is a very imperfect means of ensuring
> human freedom, but one we are for now stuck with. Wanting to make it as
> perfect and well-functioning as possible should never blind us to the fact
> that
> it will always be imperfect in some regards and thus subject to the
> constraints of justice. As a political community, we should be especially wary
> of interfering with the right of parents to make decisions for their children,
> because those rights pre-exist our political community and will continue after
> our political community ceases to exist.
>
> At the end of your email, you invoke the "best interests of the child" but
> this
> seems to me to beg the question. Parents who ask mohelim or doctors to
> circumcise uniformly believe it is in their child's best interest for him to
> be
> circumcised. The question is, who decides what is best? Does the state have
> to come forward with some evidence for its intrusion into the familial
> relationship (one that reflects millennia of practice/custom) or is the onus
> on
> the private parties to explain why the state can't interfere? Unless ours is
> to
> be a totalizing technocratic state, I think the answer has to be that the
> family
> says so in the first instance. (Indeed, the technocratic, statist approach
> would
> post-AAP decision put the onus on non-circumcising parents to justify their
> failure to circumcise their children; cf. non-vaccinating parents.) In the
> same
> vein, I don't think we are now arguing about what the pediatricians say, but
> instead you are trying to explain why we should ignore -- based on your
> personal political philosophy -- what the pediatricians have said in
> definitive
> fashion.
>
> You have tried to delegitimize religious feeling as a reason for parents to
> make the decision to circumcise, but I remain unconvinced. You have no basis
> for claiming (and civil courts have no basis for claiming) that such a basis
> is
> illegitimate. In our system, it does not logically follow from the premise
> "civil
> courts are not competent to evaluate religious questions" a conclusion that
> civil courts are entitled to ignore/devalue religious reasons claimed by
> private
> parties. The state may be incompetent to decide religious questions, but
> private individuals and institutions *are* capable of deciding religious
> questions and the state must respect those decisions precisely because it
> respects its citizens. Otherwise the state is deciding religious questions by
> default. In your effort to delegitimize any consideration of a religiously-
> motivated reason for circumcision, you are stealing a march for an
> agnostic/atheistic view.
>
> Your focus on "irreversible alteration" is also misplaced. There are any
> number of irreversible alterations that parents undertake for their children.
> Take port-wine stains, cleft palates, moles, or other aesthetically unpleasing
> but inborn features of a child's body. Are these all to be left in place
> until the
> child is 18 and can make a decision? Will the child be pleased that his/her
> parents (out of a false humility towards the child) didn't take measures to
> get
> rid of these features when they were younger? Will a devout 18-year-old
> Jewish child say, "Thanks, Dad, for leaving the circumcision decision to me"?
> There is a kind of unreasoning rage against the contingent in the notion that
> every person can self-determine in this way. Of course we can't. We are all
> born into contexts and those (historically contingent) contexts, including our
> parents, pre-determine us to some degree, whether we want them to or
> not. Indeed, there's a strong argument that the psychological or
> circumstantial shaping that parents undertake with respect to their children
> is
> far greater, practically speaking, than the decision to circumcise. For
> example,
> while you were a child, your parents decided to emigrate to the United
> States with you rather than staying in the Soviet Union, something that
> presumably changed your life's path significantly. (Moreso, I would think,
> than a decision to circumcise.) Should they have waited until you were 18 so
> you could freely reach a decision about whether to stay in the Soviet Union?
> Of course not. They decided what they thought was in the best interest of
> their family in general and their children in particular and acted on it.
> What if
> the Soviet authorities had said, "Sure, emigrate, but leave your children
> behind because it will be in their best interests for us to educate them here
> in the workers' paradise instead of letting them be raised in the US?" Would
> it have been just for the state to decide your best interests in that way? Of
> course not.
>
> Finally, I think you are missing something even more fundamental about the
> nature of man and the state with respect to the question of circumcision.
> Thousands of years of history show that Jewish people simply aren't going to
> comply with a government edict that they not circumcise their boys eight
> days after birth. Jews have demonstrated a willingness to suffer and even
> die to carry out this commandment. The governments that have tried to
> impose such edicts have all gone by the wayside, but Jews still carry out the
> bris mila. Thus to a certain extent the discussion we are having is moot. Jews
> are going to continue to circumcise whether you, I, or this list bless it or
> not.
> Given that fact, perhaps it is not in the state's interest to pick this
> particular
> fight, because more likely than not it is going to lose.
>
> Eric
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