U.S. Circumcision Lawsuit Advances as Doctors Behind Policy Backtrack
Two unrelated—but highly significant—developments concerning circumcision in the U.S. have largely escaped media notice.
Last week, a Multnomah County Circuit Court judge allowed a lawsuit challenging Oregon’s law banning female genital mutilation (FGM) to proceed. The plaintiffs—men circumcised as infants—argue that Oregon’s FGM statute violates the state’s constitutional guarantee of equal protection by shielding only females from non-consensual genital cutting. In their view, the law unlawfully discriminates on the basis of sex by failing to extend the same protection to boys.
At issue is whether gender-specific protections against genital cutting can withstand constitutional scrutiny in an era of increasing legal and ethical focus on bodily autonomy. Though the court has not yet ruled on the merits, the case represents the first time a U.S. judge has allowed a male circumcision–related equal protection claim to move forward.
Meanwhile, in the realm of medical ethics, a separate reckoning is unfolding. A new article in the Journal of Medical Ethics features newly reported interviews with two members of the American Academy of Pediatrics (AAP) 2012 Circumcision Task Force—both of whom now question the very policy they helped craft.
The Academy’s 2012 policy on newborn circumcision expired in 2017, yet remains widely cited. Its key phrase—“the health benefits of newborn male circumcision outweigh the risks”—still appears on hospital websites, in parental handouts, and in news coverage.
Douglas Diekema, M.D., MPH, the task force’s bioethicist and Andrew Freedman, M.D., its pediatric urologist, both now indicate the circumcision policy was shaped, in part, by legal and cultural concerns.
Diekema says that while he remained confident in the task force’s review of the scientific literature as it existed at the time, he was dissatisfied with the final recommendation. If the Academy were to ask him today, he says he would advise that, “I don’t think you can honestly say in a recommendation that the benefits outweigh the risks.”
Diekema says it was really a legal question for him. “My feeling was that there was not sufficient data to suggest that this procedure should be outlawed, particularly given that there were multiple religious communities for whom this was an important practice. But I also didn’t think pediatricians should be recommending it,” he says.
The AAP issued its 2012 policy statement just thirteen months after a high-profile legal battle in San Francisco over a proposed citywide ban on circumcision. The measure, which had gathered enough signatures to appear on the ballot, sought to prohibit circumcision of all minors without a religious exemption. In July 2011, the San Francisco Superior Court struck the initiative from the ballot, ruling that local governments lack authority to regulate medical procedures governed by state law. The AAP’s statement was crafted amid this heightened public scrutiny of circumcision’s legality.
Freedman now confirms that the policy’s language—which he says he coined—was a compromise among members divided over how far to go, and with legal considerations in mind.
“[T]he best analogy is that the AAP guidelines are a ‘permission slip’ for those who want to circumcise their children so that society cannot say they are bad parents or outlaw the practice,” he says. “It is a non-therapeutic procedure. If it can be called a preventative medicine, it is at the very weakest level. There is nothing wrong with the [uncircumcised] penis; you cannot recommend circumcision based on medical benefit alone. Nothing about the potential benefits is communicable, so I don’t see how it could be called a public health concern,” he says.
Freedman even goes so far as to opine: “Maybe the AAP should get out of the [circumcision] business since it’s not really a medical practice. It’s only a ‘medical procedure’ in the sense that medical professionals are performing it.”
The article containing these revelatory quotes, and a companion piece in the Journal of Medical Ethics Blog, go on to explain how that single “health benefits outweigh the risks” language—despite its ethical complexities—came to dominate U.S. discourse on circumcision. At the time, media outlets ran headlines like “Pediatricians Decide Boys Are Better Off Circumcised Than Not” and “Pediatrics Group Praises the Benefits of Circumcision.”
Moreover, the CDC and the American Medical Association both adopted—and still promulgate—versions of the same language. Even today, on HealthyChildren.org, the AAP’s official parent-facing site, families are still told that parents who decline circumcision often do so out of “fear” or “belief,” while those who choose it are guided by “data.”
While the AAP’s role is not to protect physician income, its policy language can have that effect. By characterizing circumcision as medically beneficial, the organization effectively helped preserve insurance coverage for the procedure.
The new lawsuit in Oregon, and the new insights of former AAP 2012 task force members, arrive as the landscape around U.S. circumcision appears to be shifting. In September, a JAMA Pediatrics research letter found that a small majority of baby boys born in U.S. hospitals are not circumcised before they go home from the hospital. This is the first time, since national data have been tracked, that the number has fallen below the 50% mark.
In much of the world, circumcision is treated as a private cultural or religious ritual; only in the U.S. does it remain a normalized, hospital-based procedure. By contrast, peer nations such as Canada, the United Kingdom, and Australia advise against routine circumcision. Despite its lack of medical endorsement and often more stringent regulation, no nation has enacted a blanket, nationwide ban that makes religious penile circumcision illegal across the board.