BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 768|
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                                 THIRD READING


          Bill No:  AB 768
          Author:   Gatto (D), et al.
          Amended:  8/15/11 in Senate
          Vote:     27 - Urgency

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 8/23/11
          AYES:  Evans, Harman, Blakeslee, Corbett, Leno
           
          ASSEMBLY FLOOR  :  Not relevant


           SUBJECT  :    Male circumcision

           SOURCE  :     Author


           DIGEST  :    This bill bars any city, county, or city and 
          county from prohibiting or restricting the practice of male 
          circumcision, or the exercise of parental authority to have 
          a child circumcised.

           ANALYSIS :    Existing law, the United States Constitution, 
          provides in part that Congress shall make no law respecting 
          an establishment of religion, or prohibiting the free 
          exercise thereof.  (U.S. Constitution, First Amendment, as 
          applied to the states through the 14th Amendment's Due 
          Process Clause; See  Cantwell v. Connecticut  (1940) 310 U.S. 
          296 and  Everson v. Board of Education  (1947) U.S. 330 U.S. 
          1.)  

          Existing law, the California Constitution, provides that 
          free exercise and enjoyment of religion without 
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          discrimination or preference are guaranteed.  Existing law 
          also specifies that this liberty of conscience does not 
          excuse acts that are licentious or inconsistent with the 
          peace or safety of the state.  Existing law also provides 
          that the Legislature shall make no law respecting an 
          establishment of religion.  (California Constitution, 
          Article 1, Section 4)

          Existing law, the U.S. Constitution, prohibits any state or 
          local government from depriving any person of life, 
          liberty, or property without due process of the law.  (U.S. 
          Constitution, 14th Amendment, Section 1.)  Existing case 
          law recognizes that the due process clause protects "a 
          realm of personal liberty which the government may not 
          enter," including the right of parents to direct the 
          upbringing of their children.   Planned Parenthood v. Casey  
          (1992) 505 U.S. 833, 847.  Existing case law also holds 
          that "the interest of parents in the care, custody, and 
          control of their children ? is perhaps the oldest of the 
          fundamental liberty interests."   Troxel v. Granville  (2000) 
          530 U.S. 57, 65.
          Existing law provides that no city, county, or city and 
          county shall prohibit a healing arts professional licensed 
          with the state, as specified, from engaging in any act or 
          performing any procedure that falls within the 
          professionally recognized scope of practice of that 
          licensee.  (Business and Professions Code Section 460(b))  

          Existing law, criminalizes the practice of female genital 
          mutilation, as defined as the excision or infibulation of 
          the labia majora, labia minora, clitoris, or vulva, 
          performed for nonmedical purposes.  (Penal Code Section 
          273.4)  

          This bill provides that no city or county, or city and 
          county statute, ordinance, regulation or any administrative 
          action may prohibit or restrict the practice of male 
          circumcision, or the exercise of a parent's authority to 
          have a child circumcised.  

          This bill applies to general law and charter cities, 
          general law and charter counties, and charter city and 
          counties as part of a stated need to have uniform 
          application of laws affecting male circumcision throughout 

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          the state.  

          This bill makes related legislative findings. 

           Background  

          While male circumcision is considered a commandment from 
          God in Judaism, and is also routinely practiced by Muslims, 
          male circumcision is now also widely practiced by many 
          others in the United States for social reasons, as well as 
          hygiene or other health-related reasons.  Though now in the 
          minority worldwide, circumcised men remain the vast 
          majority in the United States.  (Ogilvie, The Debate over 
          Circumcising Baby Boys,  Los Angeles Times  , 
          http://articles.latimes.com/2011/jul/11/health/la-he-pro-con
          -circumcision-20110711, July 11, 2011 İas of August 17, 
          2011].)  

          To date, many major medical associations have not yet taken 
          a position on routine male circumcision.  The American 
          Academy of Pediatrics (AAP) states that circumcision has 
          both risks and benefits and further states that parents 
          should be given all the information available to make an 
          informed decision as to whether to circumcise their 
          children or not.  (AAP Web site, 
          http://www.healthychildren.org/english/ages-stages/prenatal/
          decisions-to-make/pages/Circumcision.aspx, İas of August 
          17, 2011].)  (Note:  the Center for Disease Control and 
          Prevention (CDC) is currently working on a recommendation 
          on the practice of circumcision, but no such recommendation 
          has been released as of the writing of this analysis.)  

          In 2004, a coalition of individuals opposed to the practice 
          of male circumcision sought to introduce a bill in Congress 
          called the "Male Genital Mutilation Bill."  (MGM Bill, 
          Press Release February 23, 2004, available at 
          http://mgmbill.org/pressrelease4.htm, İas of August 17, 
          2011].)  Since that time, similar measures have been 
          proposed in various localities, including a recent 
          initiative proposed in San Francisco, as further discussed 
          below.  
            
          In 2011, sufficient signatures were gathered to qualify the 
          placement of an initiative on the November ballot in San 

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          Francisco to ban the practice of male circumcision, also 
          coined as "Male Genital Mutilation" by proponents of the 
          ban, comparing the practice of male circumcision with 
          female genital mutilation (FGM), which is prohibited by 
          state and federal statute.  (Penal Code Section 273.4; 18 
          U.S.C. Sec. 116; See Comment 3b for a discussion of the 
          practice of FGM.)  Specifically, the proposed San Francisco 
          measure would have made the practice of circumcision a 
          misdemeanor offense punishable by a fine of up to $1,000 or 
          up to one year in jail.  The measure did not provide for 
          religious exemptions.  (SF MGM Bill, available at 
          http://www.sfmgmbill.org/Site/Home.html, İas of August 17, 
          2011].)  In Santa Monica, sufficient signatures were also 
          obtained to place a similar measure on the ballot, but the 
          measure was later removed voluntarily.  Together, these 
          initiatives represent part of a greater movement to ban 
          male circumcision.  

          Separate from this bill, opponents of the San Francisco 
          male circumcision ban filed suit in Superior Court, seeking 
          the removal of the measure from the November ballot.  The 
          American Civil Liberties Union (ACLU) and the San Francisco 
          City Attorney's Office both filed amicus briefs in favor of 
          removing the measure from the ballot.  On July 28, 2011, 
          several weeks after the introduction of this bill, a San 
          Francisco Superior Court judge ruled in favor of the male 
          circumcision ban's opponents, removing the measure from the 
          November ballot.  The judge's ruling states that "the 
          proposed ballot Initiative is expressly preempted by 
          California Business and Professions İCode] §460(b).  The 
          evidence presented is overwhelmingly persuasive that 
          circumcision is a widely practiced medical procedure.  
          California Business and Professions Code §460(b) applies to 
          medical services provided by a wide range of health care 
          professionals.  The statute speaks directly to the issue of 
          local regulation of medical procedures and leaves no room 
          for localities to regulate in this area.  In fact, the 
          legislative history of §460(b) confirms that the 
          legislature intended to prevent cities and counties from 
          regulating medical services which is a matter İof] 
          statewide concern.  Because the proposed ballot initiative 
          attempts to regulate a medical procedure, the proposed 
          ordinance is expressly preempted."  


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           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  8/23/11)

          American Civil Liberties Union
          California Medical Association

           OPPOSITION  :    (Verified  8/23/11)

          Alliance for Transforming the Lives of Children
          Bay Area Intactivists
          Circumcision Resource Center
          Colorado Chapter, National Organization of Circumcision 
            Information Resource Centers
          Doctors Opposing Circumcision
          Intact America
          Intact Sonoma
          Jews for the Rights of the Child
          MGMbill.org
          National Organization of Circumcision Information Resource 
            Centers
          Wellness Associates 

           ARGUMENTS IN SUPPORT :    According to the author, "There 
          have been recent efforts by some to enact local ordinances 
          banning this very personal parental choice.  A local 
          initiative in the City of San Francisco had qualified for 
          the ballot this November that would ban this otherwise 
          legal practice.  A court ruled the initiative 
          unconstitutional and removed it from the ballot in San 
          Francisco. ?  AB 768 seeks to nullify such a ban in the 
          event the San Francisco initiative passes this coming 
          November, by occupying the field at the state level as it 
          pertains to male circumcision.  This measure would further 
          serve to prevent anyone from trying to introduce a similar 
          initiative either in San Francisco or anywhere else in the 
          State, and would save money in legal costs by eliminating 
          the need for lawsuits challenging the constitutionality of 
          such measures if they are brought up in other localities.  
          Even if the courts keep the San Francisco initiative off 
          the ballot, AB 768 would effectively prevent future 
          attempts to qualify similar initiatives that might be 
          drafted to answer the courts' concerns, again saving money 

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          in legal costs for the future court challenges that would 
          come as a result of such redrafted measures."

          The ACLU writes that it supports AB 768 "because it 
          clarifies that existing law preempts local ordinances 
          banning or restricting circumcision and it is important 
          because of the fundamental rights at stake. ?  A local ban 
          or criminalization of male circumcision interferes with the 
          parents' right to direct the medical treatment and 
          religious upbringing of their children." 

          The California Medical Association (CMA) writes:  "İT]he 
          CMA has long endorsed the concept of newborn circumcision 
          as an effective public health measure.  Numerous studies 
          and clinical trials have associated male circumcision with 
          a lower risk for HIV and HPV infection and, to some extent, 
          transmission.  While, like many medical procedures, there 
          are some risks, serious complications are rare.  Despite 
          the varying opinions on the benefits and risks of the 
          procedure, the CMA is generally concerned İwith] any local 
          jurisdictions passing an ordinance that will interfere with 
          the practice of medicine.  The decision to perform such a 
          medical procedure should be left up to the parents in 
          consultation with their physician."

           ARGUMENTS IN OPPOSITION  :    In opposition to this bill, 
          Jews for the Rights of the Child writes: 
           
             Our group believes it is anachronistic for Jews and 
            Muslims to be allowed to commit a heinous crime on their 
            boys, amounting to ritual sexual abuse, in the name of 
            religion. No other religious or cultural groups are 
            granted such license.  We Jews are required to respect 
            the Law of the Land.  We feel it is high time for the Law 
            of the Land to reflect current policy and thinking about 
            the personhood and rights of infant and minor boys. If 
            the US Government and the State of California will not, 
            our Cities must have the right to do so.  

            The claims to medical advantages for infant male 
            circumcision inserted into the bill are fraudulent.  Any 
            amputation (provided the victim survives) results in a 
            lower infection rate of the missing part (even with 
            female genital cutting). But in no other context does 

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            that slight benefit provide sufficient justification to 
            legally perform the amputation of a healthy organ (such 
            as the prepuce) from a protesting minor. The short- and 
            long-term neurological, psychological, sexual, 
            relationship, social, cosmetic, ethical, and financial -- 
            as well as medical (including death) -- harms from 
            circumcision (certain and potential) far outweigh any 
            advantages.

          Also in opposition, Intact America argues that "İn]o 
          medical society in the world recommends circumcision as 
          necessary medical care.  Neonatal circumcision destroys 
          erogenous tissue and places newborns at immediate risk of 
          infection, hemorrhage, penile damage, and even death.  In 
          2010, a Georgia boy received $2.3 million as compensation 
          for a botched circumcision that removed a large part of his 
          penis.  Earlier this year, a South Dakota family was 
          awarded $230,000 for the loss of their son, who bled to 
          death following his circumcision."  İEmphasis in original.] 
           Intact America further asserts that "İc]ircumcision 
          violates a child's basic human body right to bodily 
          integrity.  All children must be protected from bodily 
          harm.  In the United States, federal and state laws 
          prohibit any form of genital cutting on girls by health 
          care professionals or laypersons, while the genital cutting 
          of boys is not only currently tolerated but actually 
          promoted in medical settings."  İEmphasis in original.]

          Bay Area Intactivists states that "(1) For the first time 
          in any jurisdiction in the world, this bill enshrines the 
          notion that circumcision absolutely has broad health 
          benefits and is socially desirable.  These claims are not 
          supported by any national medical or psychological 
          association the world.  The bill's sponsor fabricated 
          entirely the story that WHO recommends the infant 
          circumcision of males worldwide - he deliberately misled 
          the Senate Judiciary Committee prior to their vote.  

          "(2) The law deregulates circumcision at the state level to 
          such an extent that any operator, licensed or unlicensed, 
          may circumcise a child of any age at the request of one 
          parent.  Even over the strenuous objections of the other 
          parent.  The operator could be a health professional, a 
          parent, a mohel, a gardener or even the child next door 

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          wielding a knife.  It says all circumcisions are OK, 
          regardless of the reason of who does it, as long as one 
          parent agrees."


          RJG:mw  8/26/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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