Wednesday, July 18, 2012

When would it no longer be too soon for Germany to ban circumcision?

By Mike Dorf

A regional court in Cologne recently ruled that circumcision of male infants and young boys is harmful to them and therefore illegal.  The decision drew criticism and protest from Jewish and Muslim leaders in Germany and elsewhere, including a committee of the Knesset, Israel's parliament.  (AP story here, courtesy of HuffPo.)  Here I want to raise a question about the length of the shadow that a country's past misdeeds should cast over its current policy decisions.

To get to the issue that interests me, I'm going to make a number of potentially controversial assumptions.  I am not committed to any of these assumptions--so if you disagree with one or more of them, please don't flame me about it.  The assumptions are really really not the point.  It's the analysis that follows from them.

Okay, here are the assumptions: (1) Circumcision has some medical benefits, most prominently the reduction in the risk that future sexual partners of circumcised men will contract cervical cancer; (2) circumcision also carries some small risks of infection or otherwise being botched, is painful to the infant or young boy on whom it is performed, and somewhat reduces the ability of circumcised men to experience sexual pleasure; (3) therefore, in a jurisdiction in which circumcision is legal, parents could reasonably decide either to circumcise or not to circumcise their sons, and obviously, having a religious reason for doing so would count as a reason in favor; (4) but likewise, a reasonable legislator could decide to ban the circumcision of minors too young to give informed consent to the procedure; (5) and if a legislature in some jurisdiction did enact such a ban, it would have good reason to exempt from the ban those persons who felt a religious obligation to circumcise their young sons, although the jurisdiction might also choose not to provide religious exemptions if the particular jurisdiction does not, as a rule, provide religious exemptions from general laws.

Now suppose that some jurisdiction is considering a circumcision ban.  Let's assume that, after careful study of the evidence and the arguments, the legislators come to the view that circumcision of young males ought to be banned and that religious exemptions should not be granted.  And let's further assume that they do not reach that decision on the basis of any sort of animus against the minority religions affected (Jews and Muslims).  Assuming that such a determination would be justifiable in some jurisdiction without a fraught past on this issue (Denmark, let's say), would it be unjustifiable in a jurisdiction that does have a fraught past (Germany will do as our example)?  And if so, for how long?

At the very least, I would think that German legislators (or judges, but for simplicity I'll focus on legislators) would have an additional obligation to examine their motivation extremely carefully.  But beyond that, it strikes me that the substantive calculus should be different for the German legislators because the law's costs and benefits tally up somewhat differently in Germany than in Denmark.  In addition to the same costs the law imposes wherever it is enacted, in Germany it also creates symbolic harm.  Laws (and court judgments) do not merely tell people what they can, cannot or must do; laws also express messages, and those messages can themselves be harmful.  In Germany, even now, two thirds of a century after the end of World War II, a law banning circumcision without religious exemptions could carry the meaning that Jews (and perhaps Muslims) are second-class citizens, even if an identical law would not have the same meaning.  For more on the complicated question of figuring out when a law conveys such a message, see my article here.

Okay, assume I'm right about all of that.  Assume, in other words, that Denmark would be justified in passing a no-exemptions circumcision ban but Germany would not be.  When, if ever, would Germany be on a level playing field?  In a hundred years?  A thousand years?

I don't think one can answer that question in advance.  Our own situation is instructive.  Although slavery ended in the United States in the 1860s, certainly the fact that most African Americans are descended from slaves continues to bear on racial justice in the United States today--but that's due in no small part to the fact that we did not go from slavery to equality.  Jim Crow apartheid persisted into the 1960s and so much of the racial stratification we observe today can readily be traced to the historical injustice of racialized slavery and its legacy.

But even in the period in which the "taint" of the historical injustice lingers, policy makers ought not hesitate to act where they have a truly compelling basis for doing so. Thus, if new and widely accepted evidence were to emerge that circumcision is terribly harmful to young boys, German legislators could reach the conclusion that, notwithstanding the expressive harm, the benefits of a ban outweigh its costs.


Antonio M. Haynes said...

Mike, it seems that your analysis only works if you assume that there needs to be any evidence beyond the fact that unconsented circumcision is a tremendous invasion of bodily integrity. If a society, as a general matter, decides that an individual's right to bodily integrity is truly fundamental, I don't see why that right couldn't be privileged beyond both (1) free exercise and (2) a parental right to direct the upbringing of their child. Past taint seems wholly irrelevant to that point and German legislators ought to be able to make that calculus just as easily as Danish ones.

If we keep going with the example of race in this country, let's make the following (also controversial) assumptions: (1) Many evangelicals take seriously the idea of "spare the rod, spoil the child" and thus spank their children;(2) an overwhelming number of blacks are evangelicals and thus spank their children at a much higher rate than other groups in this country; (3) spanking is a battery, a violation of bodily integrity that the law typically does not countenance. Do you really mean to say so long as the taint of racism exists, a legislature here could not ban spanking absent some compelling evidence-- beyond the battery itself—that it harms children, merely because black evangelicals engage in the practice at higher rates and believe it to be religiously mandated?

froginblender said...

Mike, I think you want to edit the end of your fifth paragraph: even if an identical law *in Denmark* would not have the same meaning.

A very broadly based review of male circumcision studies concludes that [male circumcision] "is beneficial, safe and cost-effective, and should optimally be performed in infancy." If the authors have done their job right, that is likely to be the definitive word for some time.

And in Germany, the latest news is that the Bundestag (Germany's parliament) today asked the government to draft a law on male circumcision. While talk in the past weeks had been on creating an exemption for Jews and Muslims, last-hour deliberations appear to have resulted in a call for a law that would make it "permissible" for ANY parents regardless of religion to have their male child circumcised -- PROVIDED THAT the procedure is performed "in accordance with best medical practice" and "without causing unnecessary pain".

Previously, instead of "permissibility" the parliamentary sponsors had talked of "exemption from criminal sanction" -- the phrase used to gingerly step around abortion being technically against the law while ensuring that women and abortion providers cannot be prosecuted. The change from this to "permissibility" indicates a somewhat more sanguine attitude towards MC, as does the move towards making it available to all families instead of only some.

The situation is very much in flux, however, and there is no telling yet what sort of draft the government will come up with in autumn, not even which of Germany's many codes it will be wedged into. "In accordance with best medical practice" and "without causing unnecessary pain" are especially contentious because these phrases are specifically designed to allow people without a medical degree to perform the procedure, which some lawmakers are resisting.

Today's resolution brought together lawmakers from all parties (Christian Democrats, Social Democrats, Free Democrats, Greens) but one: the post-communist Left party was not asked to co-sign.

In contrast to the fast track that the law appears to be on now is the mood among the German public and especially on the German-speaking Internet. Huge numbers of people are railing against male circumcision, against religion in general and against Judaism in particular (this time, Islam is not in the cross-hairs). Some of it is quite ugly. said...

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froginblender said...

How ugly? Have a look at yesterday's cartoon in Berliner Zeitung newspaper, reproduced in Jörg Lau's blog on Zeit Online: (link Not Safe For Work)

A man in the garb of an Islamic cleric holds up a severed penis and testicles in one hand, a bloody knife in his other hand, and says: Uh-oh, not my day today! Facing him is a youth with a kippa on his head whose body the male appendages were formerly attached to; he says: Chin up, soon it won't be a crime anymore!

Tony said...


"If the authors have done their job right, ..."

They haven't. They only consider the risks of complications. They don't consider any of the costs of circumcision. The loss of the foreskin and severed nerve endings are ignored as harms/costs, for example. And where they might encounter evidence of a harm, they beg the question they want to answer. "... Two studies that found MC reduced risk of premature ejaculation was regarded by the men as a benefit [155,166]. ..." In other words, it results in a decrease in sensitivity. (Within Prof. Dorf's second assumption.) Would that be regarded as a benefit by all men? They're using a 'heads I win, tails you lose' standard.

When they get to ethics, they engage in the same fallacy. In the ethical considerations section, they write "Circumcision should be regarded as a minor medical procedure. To maximize medical benefits and minimize risks and costs, circumcision should be performed in infancy. ..." That merely assumes the conclusion. It demonstrates nothing about the ethics, unless they're asserting that all intact males will need or want circumcision upon reaching adulthood. The only consideration they give to the (not newly claimed) principles expressed within the court's ruling is also lacking: "An alternative view, based on right to autonomy, is that circumcision should be delayed until the male can decide for himself [192,193]. Other bioethicists and legal commentators argue that in view of the risks of not circumcising, infant MC is a justifiable public health measure [194,195]." Acknowledging that some people believe something doesn't refute the validity of what they've stated.

They then follow it up with the claim that "...UTIs are common in infancy, as is the damage they cause to the still-growing kidney." A UTI rate of 1% within the first year of life for intact males hardly justifies their claim or their conclusion based on that claim. Circumcising 100 to protect 1, with only a small subset of the 1% suffering kidney damage, when less invasive treatments exist is preposterous. They started with the conclusion that it should be done in infancy.

"... Some of it is quite ugly."

Your criticism of some of the responses is spot-on. That ugliness should be condemned wherever it's found. But it's existence shouldn't be conflated with the principled case expressed within the court's ruling. Those aren't altered by the offensive views some use as a substitute for the principled argument.

Within the context of the original post, I don't buy the idea that circumcision needs to be "terribly harmful" when harmful should suffice. It's non-therapeutic. With that standard, though, the case that sparked the ruling involved a boy hospitalized for serious, life-threatening complications from a circumcision the court found to be performed competently. That's a risk in every circumcision. Even within the five assumptions listed, this seems to satisfy overcoming the understandable hesitation.

froginblender said...

Update: I got fooled (not for the first time) by the apparent thrust of the flow on the Internet. Even though German-speaking opponents of male circumcision have been flooding the comment boards (ten-to-one numerical advantage), this appears not to have swayed the general public as much as they are hoping for. According to the online edition of German news magazine Der Spiegel today,a new nationwide opinion survey shows that 42 percent of respondents are fine with circumcision of male children continuing to be permitted, while 45 percent are against.

This, after a full-court press lasting weeks from anti-MC activists, the likes of which I have never seen before. (Comment threads on this topic are consistently getting a multiple of the volume found on arguably more important topics such as Europe's sovereign debt crisis.)

Tony, thanks for your comments. In the paper to which I linked, Table 1 (page 6) summarizes the quantitative findings. Going through the "risks from not circumcising" one by one and comparing to the risks of circumcising infants (directly below), I am well satisfied that MC is a net plus. I understand that you are not and that you have your reasons, which I respect. Let's leave it at that, as neither of us will change the other's mind.

froginblender said...

As to the "principled decision" of the German court. Keep in mind, there are more than 150 "regional courts" (Landgerichte) in Germany. They are the first level of appeal, the next are the "higher regional courts" (Oberlandesgerichte), after that an appellant can turn only to the Federal High Court (Bundesgerichtshof) or to the Federal Constitutional Court (Bundesverfassungsgericht).

Within the Cologne regional court, this was merely one of six "chambers", each comprising one judge and two lay judges (Schöffen). Almost invariably the lay judges simply rubberstamp what the judge puts in front of them. So, one lower-level judge acted way above his pay grade. Directly appealing the decision is possible in theory, under an obscure provision where anyone can appeal directly to the federal constitutional court on matters of overriding public interest, but this has only been tried once (and it failed then).

The doctor cannot appeal because he has been acquitted (although his actions were found to be unlawful), the prosecutor already said she won't appeal. And, although an expert witness testified that the doctor was not to be faulted for his handling of the circumcision, I have my doubts. After performing the procedure in his office, he sent home the four-year-old and his mother. But they were staying at a friend's house, having traveled 350 miles to get there; the mother spoke only Arabic and French, and moreover she is blind. All in all, I believe that keeping the kid in hospital overnight (or even two nights) as a precaution was warranted. The outcome is almost a little "too neat".

On, a German blog focusing on constitutional law, all three bloggers weighing in have criticized the court's decision, e.g., Georg Neureither here. I'd be doing an injustice to the author if I tried to summarize his argument in a few words, but he does believe that in failing to properly weight the relative merits of law and religion as it was required to do, the court produced an unconstitutional verdict.

Tony said...


I'm not trying to change your mind or your personal conclusion. You should be able to draw whatever net conclusion on non-therapeutic circumcision you want. It's a subjective evaluation, and not everyone values what I value. Nor do I reject the quantitative findings. I think it's silly when the study presents the "risk in an uncircumcised male of developing a condition requiring medical attention over their lifetime = 1 in 2", for example, because that says nothing about the need for therapeutic circumcision over the course of a lifetime other than it's something less than 50%, but whatever. Apply it to yourself however you want. I just value aspects of the issue differently, including those it omitted. That's the issue at hand, reflected in the court's finding and the principles to which I referred. Physical integrity and self-determination. To each his own, not to each his parents.

That said, I don't think your conclusion on the quantitative findings refutes my criticism of the study. The paper is incomplete, at best. It doesn't factor in the costs of circumcision. That's flawed. (Prof. Morris is not alone in making this mistake.) If you're relying on this study as sufficient for your conclusion, then I'm not convinced you factor them, either. Again, you're free to do that for yourself. I genuinely do not care. It's the impact to public policy that's relevant. Permitting circumcision based on an incomplete acknowledgement of what's involved is indefensible. I believe circumcision properly considered would lead to exactly what the court ruled, but if we're going to circumvent its logic*, we should do so with all facts, not a subset.

(* Possible legal criticisms aside, for purposes here.)

froginblender said...

Tony, play fair. Contrary to the impression you are trying to create, the court did not consider any medical evidence whatsoever, either pro or con male circumcision. The court did not call a single expert witness to give evidence on the views held within medical science and cited not a single item from medical literature. In particular, your so-called "costs" argument was not mentioned at all.

(I keep hearing from anti-MC activists that there is a "loss of 20,000 nerve endings" when the foreskin is removed. Even assuming that figure is not made up, so what? Is it 0.1 percent of the total nerve endings in a body, 0.01 percent, 0.001? Do circumcised men feel deprived of sexual pleasure? The medical review to which I linked says the opposite.)

The court rested its verdict solely on its interpretation of the law and on numerous articles by legal scholars, giving greater weight to authors arguing against male circumcision of minors. It did not mention any of the numerous arguments contra MC you cite but one: the breach of the child's bodily integrity.

On the last page of the verdict, the judge expressly concedes that other courts have ruled differently in the past and that articles in legal reviews have argued in favor of the legality of circumcising male children; he even writes "and not without good reason". Even so, the judge decided otherwise. I cannot help thinking that this lower-court judge knowingly overreached because... well, his personal motives are unknown to me. But it's a textbook case of judicial activism.

froginblender said...

Actually, this passage from the verdict does hint very strongly at (some of) the underlying motivation, and it's not safeguarding of (physical) health: "Moreover, the child's body is permanently and irreparably altered by the circumcision. This alteration runs counter to the child's interest in being able to decide on his own, at a later time, on his religious affiliation."

It's the (naive) secularist belief that you can keep children away from religion until they are 18 and then they can freely choose as from a cafeteria menu. This is wrong: after an atheist upbringing, they will have been shaped and molded in a particular direction just as children raised in a faith are shaped and molded. It's a fallacy of militant secularists that it is fine to allow atheists to mold their children but not to afford religious parents the same privilege. In any case, no religion that I am aware of refuses circumcised converts.

Tony said...

I think you're confusing what I'm saying because we're discussing two source documents. When I refer to the court ruling, I'm making three points:

- right to physical integrity
- right to self-determination
- circumcision constitutes harm

I'm going no further. I don't believe I am mistaken in drawing those three, even in the face of your criticism of the way the court found the third. As I wrote, I think the reasoning is solid. But, if there's a criticism beyond the textual reading, that's a separate, possibly valid issue to discuss. I am not trying to create any other impression about the ruling. Everything else I wrote is either general comments based on facts or a reference to Prof. Morris' paper.

The exclusion of a cost argument from certain sources does not render it invalid. Why should I pretend that a normal body part's disappearence isn't worth mentioning on its own, as Morris does? We'd engage in that for no other normal body part, so I'm not interested in exempting the foreskin from the necessary analysis.

Nor am I willing to concede that Morris' paper is in any way a conclusive view of the argument. I highlighted a few flaws in the paper, and also explained that a conclusion on net benefit is subjective to each person. We all value things differently. Me, I prefer condoms and other less invasive prevention methods, for example. Can you demonstrate the necessary math to prove how everyone is supposed to value each input in the equation, and in a way that shows an objective net benefit as the only conclusion? You can't because it's subjective to each person, so the ethical objections to non-therapeutic circumcision on children stand.

Finally, I think you misunderstand the supposed smoking gun you found in the ruling. Physical integrity and self-determination do not mean that parents can't raise their children in religion. They can, and should be able to continue doing so. The scope of the ruling as I read it is that parents can't inflict permanent physical harm in the name of their religion. Basically, they can't practice their religion with a scalpel. That's different than the nefarious intent you find. Were that the goal anywhere, I'd object right along with you. It isn't.

froginblender said...

Just a couple more months until the German parliament passes a law and then this farce will be history. I still can't get over the gall of that judge...

Of course the activists aren't going to give up. I expect someone will challenge constitutionality of the new lex circumcisionis, the Federal Constitutional Court will uphold it, and that will be that.

The activists can then try to change the law via the political process, but they have their work cut out for them. I don't think they will succeed, but they are entitled to try,

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froginblender said...

Today the Bundestag, Germany's legislative assembly, voted on the proposed new law that for the first time explicitly permits and regulates non-therapeutic circumcisions. The vote was 434 in favor of, 100 against, 46 abstaining.

An alternative proposal that would have restricted circumcision to consenting boys aged 14 and older failed, with 91 voting yes, 462 no, and 31 abstentions.

On Friday, the same bill will come before Germany's upper house (the Bundesrat). It is a foregone conclusion that the Bundesrat, too, will greenlight it.

And that, hopefully, is the end of this bizarre episode.

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