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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