The Seattle Times, Slate, and other outlets have run interesting stories in the last couple of days discussing a new initiative that will appear on this November’s ballot in San Francisco–and hold onto your privates, gentlemen: It would ban circumcision for all minors (under age 18), rendering it a misdemeanor punishable by up to one year in jail or a $1,000 fine. It would contain no religious exemptions. While this is just a ballot initiative–not yet an approved ordinance–the mere threat of its enactment (and the fact that its supporters managed to get over 7,000 signatures) bothers my libertarian soul.
Media reports obsess about the First Amendment implications of such an ordinance, though honestly, since the Supreme Court’s decision in Employment Division v. Smith (1990), any state or local law of “general applicability” that burdens the free exercise of religion will be subject only to low-level rationality review (federal actions are subject to more rigorous review under the Religious Freedom Restoration Act). Since the supporters of the proposed circumcision ban claim that circumcision is a form of “genital mutilation” that is painful and unnecessary, it would seem to sail easily over the “rational basis” hurdle.
So frankly, I’m not all that interested in the First Amendment implications, though Smith is an intriguing case worthy of reconsideration. Instead, I’m struck by the lack of attention given to the individual liberty (substantive due process) implications of San Francisco’s proposed circumcision ban. I had thought it long settled that parents have a broad (though admittedly not limitless), presumptive liberty to raise their children as they see fit. Circumcision may indeed be painful to an infant, but is it any more so than piercing a little girl’s ears? Or tattooing your child? In either case, there is temporary pain and an extremely low risk of serious harm. In both cases, the procedure is undertaken to satisfy the parents’ own cultural or aesthetic preferences.
Supporters of the ban try to analogize circumcision to female genital mutilation, but I’m just not buying it. Female genital mutilation involves cutting out the clitoris, rendering the girl disfigured and permanently unable to have a normal, healthy sexual life. Circumcision obviously has no such long-term effects, as the 80 percent of U.S. men who’ve undergone the procedure can attest. Moreover, circumcision may actually have health benefits for some– it has been considered a way to lower the risk of AIDS in African communities ravaged by that disease.
On a broader level, I’m bothered by the fact that–particularly in an ultra-progressive city like San Francisco–there’s a decent degree of support for nanny-state restrictions on individual liberty, particularly when it relates (at least tangentially) to an individual’s choice of something so fundamental–“deeply rooted” in our history and tradition–as to what medical or aesthetic procedures to undergo. I know we are talking about minors here, but again–parents are presumptively allowed to make medical and aesthetic decisions for their children all the time. But then again, progressives are just as aggressive about nanny-state intrusions into individual liberty as conservatives, when it suits their agenda–witness progressive-supported bans on foie gras in California beginning in 2012 and the FDA’s recent decision to revoke approval of Avastin as a treatment for breast cancer.
Would love to hear others’ thoughts.