Is Proposed San Francisco Circumcision Ban Constitutional?

| by The Volokh Conspiracy

By Eugene Volokh



In November, San Francisco voters will vote on an initiative that would generally ban circumcision of boys under age 18, except when “the operation is necessary to the physical health of the [child] because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a ... licensed ... medical practitioner.” In determining whether the exception is applicable, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.”

Would such a ban be constitutional? That’s a surprisingly complex question, and I’d like to break down the answer into two parts: the parental rights question in this post, and the religious freedom question in a post that I’ll put up soon.

As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated.

So the parental rights question, viewed independently of the religious freedom question, is indeed important. And, as we’ll see in the later post, it turns out that, even for religiously motivated circumcisers, the religious freedom claim depends in some measure on the parental rights question.

Is a presumptive constitutional right of parents in play here? Parents, the Supreme Court has held, have a presumptive constitutional right to control the upbringing of their children. No such right is mentioned expressly in the Constitution, but the Supreme Court has recognized this right since the 1920s, and so far only Justice Scalia has argued that no such right exists (though Justice Thomas has expressly said that he expresses no view on whether it exists).

And in Parham v. J.R. (1979), the Court suggested that the parental right extends to parents’ decisions about their children’s medical treatment. Parham itself didn’t involve a state law limiting parents’ ability to make medical treatment decisions; but many lower courts have read Parham as recognizing medical treatment decisions as part of the parents’ rights. And the California Supreme Court has so held even without relying on Parham: “We have recognized a parent’s right to direct his or her child’s upbringing as ‘a compelling one, ranked among the most basic of civil rights.’ Those rights include extensive power to direct the education of a child and to make critical decisions concerning medical treatment.”

The government can override the parents’ decisions if it has a sufficiently strong reason. To give the clearest example, the government can order treatment over the parents’ objection if a child is at risk of imminent death and the parents aren’t taking what the government sees as reasonable steps to protect the child. But the presumption is that the parents are entitled to choose their children’s medical treatment, in the absence of a sufficiently strong reason for the government to override that choice.

According to the American Academy of Pediatrics, “[e]xisting scientific evidence demonstrates potential medical benefits of newborn male circumcision” — including reduction in the risk of HIV, penile cancer (a fortunately rare disease), and inflammation. Nonetheless the evidence appears not to be definitive enough for the Academy’s purposes, or the benefits appear not to be great enough, so the Academy has concluded that “these data are not sufficient to recommend routine neonatal circumcision.” So I think it’s fair to say that there are plausible medical reasons for circumcision, though also plausible medical reasons against it (both the risk of post-operative infections, and the possible future loss of sexual sensation stemming from the removal of the foreskin). It seems likely that the presumptive parental right to control a child’s medical treatment would thus extend to medically motivated circumcisions.

But what about nonmedically motivated circumcisions (whether or not they are religiously motivated)? Given that circumcision is not medically recommended by mainstream pediatrics, and that the studies on circumcision and sexually transmitted diseases are both new and not conclusive, it seems likely that many circumcisions stem from tradition or other social factors, not medical concerns. And indeed a 1987 study reports that many parents gave nonmedical, nonreligious reasons for circumcising. For instance, 11% of the fathers in the sample who were the main decisionmakers as to the circumcision gave the father’s being circumcised as “the most important reason” to circumcise their sons. Another 18% gave “I don’t want him to look different” as the most important reason. And 9% gave “I just think it should be done” as the most important reason (though that might include some religious motivations).

It’s not clear from the precedents whether the parents’ right to decide about their children’s medical care extends to medical procedures that are nonetheless not medically motivated on the part of parents, and involve the practically irreversible removal of healthy, normal, and potentially useful tissue. I’m not saying that such decisions necessarily should be prohibited. My point is simply that the logic of the parental medical rights precedents doesn’t necessarily extend to providing constitutional protection for decisions that fall in this category, given the combined lack of medical motivation and pressing medical need.

(Some lower court cases suggest that there’s a parental right to refuse medical treatment on the child’s behalf, including when the refusal is for nonmedical reasons, so long as the medical treatment isn’t urgently needed. But the right to refuse medical treatment on one’s own behalf — seen as part of one’s right not to have one’s body meddled with — is generally more protected than the right to affirmatively get medical treatment. That’s why, for instance, the courts have not recognized an adult’s constitutional right to use medical marijuana or to buy experimental medical care, but have recognized an adult’s constitutional right to refuse lifesaving treatment. That greater protection has carried over into parents’ decisions to refuse medical care on their children’s behalf.).

Is any presumption of a parental right to decide rebutted here? But even if there is such a presumptive constitutional right to control medical treatment, the government might be able to rebut this presumption. This is especially so because parental rights are in general subject to substantial constraints. For instance, parents are limited in their ability to authorize their children to work, even if they think working is good for the child’s education, aren’t allowed to authorize their children to have sex if the children are below the age of consent, are generally required to send young children to school, and so on.

And the Supreme Court hasn’t said that parental rights are subject to “strict scrutiny,” generally seen in most fields as a strongly rights-protective standard. Rather, the parental rights might only be subject to some unspecified weaker standard of scrutiny — the Court has not been clear on the subject. And such a weaker standard of scrutiny is plausible, because parental rights aren’t just the standard libertarian rights to control one’s own life; they are the right to control the life of another, and thus raise special concerns not present as to other individual rights.

So all we can do is consider the reasons San Francisco could give for restricting parental rights here, and speculate about how the courts will evaluate those reasons. I think San Francisco’s strongest argument would go like this:

1. People generally shouldn’t have their bodies permanently altered without their consent.

2. Children can’t give such consent, especially when they’re infants but also even when they’re older, since the consent must be sufficiently mature. (Some might argue that older minors should have the right to make their own medical decisions, especially with a parent’s agreement; but even if that’s so, infants certainly can’t make their own decisions.)

3. When there are pressing medical reasons for a procedure, and delaying the procedure until the child grows up and can make his own decision will expose the child to serious harm in the meantime, someone has to make the decision; and our legal system presumptively leaves the parent with the right to make the decision.

4. But when the medical benefits are slight and likely not urgently needed — and especially when the operation would have permanent effects that the children might well dislike when they are adults — the child shouldn’t be irreversibly altered without his own personal and competent consent, which can’t be obtained until he’s an adult (and certainly not when he’s an infant).

And this of course is pretty much the argument that justifies bans (such as California’s) on female genital mutilation. It’s possible that female genital mutilation could be distinguished from male circumcision on the grounds that (to my knowledge) female genital mutilation is almost never undertaken for plausible medical reasons. But even setting that aside (and setting aside the purely medical risks of female genital mutilation), and assuming that the presumptive parental right to control a child’s medical care fully applies, that presumption is easily rebutted as to female genital mutilation.

If an adult woman wants to deny herself sexual pleasure, she is free to do so, certainly through abstaining from sex and masturbation, and likely even through removing parts of her body. But that should be a choice that the adult woman makes, not one that is made for her by her parents.

Conversely, consider routine tonsillectomies, which used to be done to children even when their tonsils weren’t inflamed. Say that a parent wants his child to get such a tonsillectomy, because the parent thinks that the possible future health benefits — such as decreasing the risk of strep throat and of sleep apnea — outweigh the immediate health risks of the operation (which are quite modest) coupled with the post-operative pain (which can be pretty severe for several days). If there is a parental constitutional right to make medical decisions on a child’s behalf, then I assume that it would extend to such an operation as well. Why? Because there’s little reason to think that the child, once he grows up, will regret the loss of his tonsils, or will feel that an important choice (whether to keep his tonsils or not) was taken away from him.

I can imagine a contrary result, under which courts would conclude that a parent has no right to order any removal of part of the child’s body, unless the removal is justified by imminently pressing health risks (as opposed to just a general concern about reducing future health risks). Such an argument could make sense under a strong children’s rights theory, under which any removal of part of a child’s body without his consent would be allowed only when genuinely medically necessary. But I doubt that courts would say this, at least if they recognize parental rights to make medical choices for their children more generally.

If I’m right, then I think the main reason for the difference between the proper treatment of female genital mutilation and tonsillectomy has to do with the cost those procedures tend to impose on the children when they grow to be adults. As best I can tell, from my rather limited knowledge of the subject, female genital mutilation tends to very substantially reduce sexual satisfaction. Tonsillectomy tends to impose no practical loss on the adult (and may offer some gain). And male circumcision is in between: There is some possibility that male circumcision diminishes future sexual sensation and satisfaction, but the matter is far from clear. And if there is some such diminution, it is likely to be fairly small — to the extent one can measure such things — and likely much smaller than for female genital mutilation.

The bottom line: So, how could courts decide in the face of this uncertainty?

1. Courts could conclude that parental rights shouldn’t be recognized at all, because they aren’t mentioned in the Constitution (that’s Justice Scalia’s view). Or they could conclude that such constitutional rights extend only to living with the child and directing the child’s education, and do not extend to authorizing parents to order invasive medical care for the child. Under such a view, the government would have a relatively free hand to constrain parents’ authority to make such decisions. The government would likely leave most such decisions in the parents’ hands (since by and large parents do have their children’s best interests at heart). But it could reassert its power to limit the parents’ medical decisions whenever the government thinks such protection is warranted.

If so, then the ordinance obviously wouldn’t violate parental rights. But courts have generally not taken this approach, and have indeed recognized a presumptive constitutional right of parents to make medical care decisions for their children — a right that the state may not take away without adequate justification.

2. Courts could conclude that parental rights include the presumptive constitutional right to make medical care decisions, but only for medical reasons. If so, then the ordinance wouldn’t violate the parental rights of those parents who don’t give a medical reason for the circumcision; but parents who do give a medical reason would then go to step 3.a below.

3. Courts could conclude that parental rights include the presumptive constitutional right to make decisions about the medical procedures to be performed on their children, regardless of the parents’ reasons. If so, then:

a. Courts would have to consider the medical evidence about the possible health benefits of circumcision, and the possible loss of sexual sensation due to circumcision (limited as the evidence might be).

b. If the courts view the possible loss of sexual sensation as a serious enough hazard, they could conclude that the parental right to make medical decisions is trumped by the government interest in protecting children against this hazard. This would be especially likely if the courts think circumcision offers only a modest medical benefit. And courts could reach such a result either if (i) they think the evidence shows there likely is a significant loss of sexual sensation from circumcision, or (ii) (A) they think the evidence suggests enough of a risk that such loss of sexual sensation will eventually be shown, and (B) they conclude that the government should be entitled to err in the direction of preserving children’s future choices (just in case such a loss will indeed be discovered later).

c. If the courts view the possible loss of sexual sensation as too unlikely — or even just as too speculative — they could conclude that the parental right should prevail, and that the right could only be trumped by more powerful evidence.

Unsatisfying, I realize, but that’s the best I can offer right now. The general problem of parental rights is, for reasons I mentioned, quite complex; and the Court has confronted it in only a handful of cases, many fewer than it has decided with regard to (say) the First Amendment or the Fourth Amendment. The Court’s most recent parental rights decision, Troxel v. Granville (2000) — a splintered opinion that yielded only a very narrow holding — exemplifies the unsettled state of parental rights law. So I don’t think there’s any more definitive legal analysis available.

Two notes: First, the law — if enacted — would be made by initiative and popular ratification and not by the legislature is not supposed to affect the constitutional analysis. One could argue that courts should respect such popular initiatives more than they respect legislation, because popular initiatives are more democratically legitimate. Or one could argue that courts should respect such popular initiatives less, because they likely represent less deliberation and expert fact-finding than does the work product of legislatures. But the official view of the Supreme Court is that both initiatives and legislatively enacted statutes are equally products of the lawmaking power, and are thus to be judged under the same rules. And, likewise, the official view of the Supreme Court is that city-level legislation is to be judged under the same constitutional rules as state-level legislation.

Second, the law would in practice not really forbid circumcision, because parents could go outside San Francisco to get their children circumcised. But what San Francisco may do, other cities may do as well. A court will therefore probably evaluate the ordinance based on the assumption that it does preclude non-medically-urgent circumcisions generally, and won’t consider the possibility that parents could take their newborn to a nearby city for circumcision.

In the comments to this post, please do not discuss the religious freedom questions; as I mentioned, there’ll be a separate post about them shortly. I thought it would be helpful to have a separate discussion that focuses on the parental rights issue — which, as I said, affects many parents who can’t claim a religious exemption — without being distracted by the religious freedom issue.