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New Hampshire legislation would severely restrict circumcision


January 7, 2024


Two bills currently being considered in the New Hampshire legislature would place significant restrictions on circumcision performed in medical facilities in the state. Anthony Losquadro reported that his anti-circumcision group Intaction assisted the primary sponsor, Representative Emily Phillips (Rockingham - District 7), in crafting the legislation. [1]



HB 1683 - MEDICAID LIMITATIONS

HB 1683 is titled, "Children's Body Autonomy Act." [2] The title of the bill is puzzling, as the bill has nothing to do with body autonomy, but rather Medicaid coverage. Even if one considered circumcision a violation of bodily autonomy, this legislation would in no way prohibit the alleged violation. Rather, the bill addresses the question of whether or not the state Medicaid program should bear the cost.


This bill would eliminate Medicaid coverage for elective infant circumcisions. If this bill is enacted, the procedure would be covered only for certain medical conditions. Among the limitations, the bill would exclude coverage for circumcision to treat a prepubescent boy diagnosed with phimosis. A boy who has reached puberty and is suffering from phimosis would be ineligible for Medicaid coverage unless other treatments had first been attempted. This limitation is contrary to standard medical care. (See the third paragraph in Communications Restrictions below.)


The American Academy of Pediatrics (AAP) has advised that "preventive and public health benefits associated with newborn male circumcision warrant third-party reimbursement of the procedure." [3] This bill would conflict with the AAP recommendation.



HB 1706 - CAPRITIOUS REGULATIONS

Titled "Circumcision Transparency Act," HB 1706 [4] would interfere in the doctor-parent relationship and place severe restrictions on infant circumcisions performed in a medical facility.



PARENTAL CONSENT

Medical facilities typically require that one parent consent to the procedure. HB 1706 would require that both parents must consent. The bill would supersede any parental agreements and custody arrangements - even those ordered by a court. In other words, the bill would require consent from both parents even if a court had determined that one of the parents was unfit to make medical decisions or otherwise was determined not to have the best interests of the child in mind.


The bill would unfairly discriminate against single parents, even in a situation where a non-custodial parent has never been involved in the child's life. In some cases a non-custodial parent may fail to send or update contact information to the custodial parent. As written HB 1706 also would seem to prohibit circumcision if one parent is deceased and thus unable to provide consent.


The bill is ambiguous as to whether a non-custodial parent could veto a decision made by a child's legal guardians. In many cases grandparents or other relatives may have legal custody, often because of child abuse, parental neglect, or parental abandonment. Does the law require that a health care provider obtain consent - not only from the legal guardians - but also from non-custodial parents? Since the law requires that a non-custodial parent, who otherwise would have no medical authority, nevertheless must provide consent for circumcision, the answer is not clear.



COMMUNICATIONS RESTRICTIONS

HB 1706 places several capricious limitations on communications between a boy's health care provider and his parents. Any health care provider who initiated a conversation with parents about circumcision or who offered parents a circumcision consent form for a health infant boy would be subject to fines and other penalties. Discussion about circumcision would be allowed only if a parent initiated the conversation.


A provider would not be allowed to mention a non-medical reason to choose circumcision, but would be allowed to mention a non-medical reason not to circumcise. A doctor would be prohibited from offering a recommendation in favor of circumcision, but could provide a recommendation against circumcision. Based on legal precedent, a court might determine that such viewpoint based speech restrictions violate the First Amendment. [5]


The bill prohibits a provider from recommending circumcision based on a phimosis diagnosis unless the condition is deemed an immediate threat or significant risk to the patient's health. This restriction is contrary to standard medical care. Both the AAP and the U.S. Centers for Disease Control & Prevention (CDC) have stated that circumcision reduces a patient's risk of phimosis. [3][6] The Canadian Paediatric Society (CPS) reports that "[an] estimated 0.8% to 1.6% of boys will require circumcision before puberty, most commonly to treat phimosis." [7] The CPS, the Royal Australasian College of Physicians, and the American Cancer Society agree that phimosis in an uncircumcised penis is strongly associated with an increased risk of penile cancer. [7]-[9] In Denmark, arguably the most foreskin friendly country on earth, [10] a 2016 study found that circumcision was the initial treatment for about 24% of boys diagnosed with phimosis. [11]



ALL BOYS UNDER 18

The provisions of HR 1706 would apply to any boy under 18 years of ago. The bill defines "newborn child" as "a person who is less than 18 years of age." Yet the bill doesn't require the consent of the child himself. It would be legal to circumcise a reluctant 16 year-old boy if both parents consent. But it would be illegal to circumcise a 16 year-old boy who begs to be circumcised, if either parent disapproves.


Disturbingly, the bill contains no provision in cases where a doctor determines that circumcision is necessary and appropriate treatment for an existing medical condition. HR 1683 would allow Medicaid coverage for several urgent medical conditions, such as recurrent UTIs, paraphimosis, recurrent balanitis, congenital chordee, and phimosis that is unresponsive to antibiotics. Yet HR 1706 has no provision that would allow a medical professional to perform a circumcision for any of these reasons - unless both parents consented. Thus there is the absurd possibility that HR 1683 would allow Medicaid to cover a medically necessary circumcision, but HR 1706 would prohibit the procedure itself.



THE TELL

In poker a tell is a revealing expression or behavior that betrays a player's true intentions. The tell in HB 1706 is Section IV, which states that none of the extensive requirements and restrictions shall apply to a medical professional who is "performing an official religious circumcision in a non-medical setting." Intactivists included this exception in the legislation because they knew that the bill would have no chance of passing the legislature if it restricted Jewish ritual circumcisions.


Yet there is no logical reason for mandating the provisions for medical circumcisions while waiving the provisions for religious circumcisions. Why must both parents consent for a medical circumcision but not for a religious circumcision? Why is a consent form with detailed statements about procedural risks necessary for a medical circumcision but not for a religious circumcision? Why does the location where the procedure will occur determine whether a doctor can advise parents about non-medical benefits?


By allowing these provisions to be waived for religious circumcisions, circumcision opponents show that the provisions don't protect a boy's rights and have no valid basis. The true reason for this legislation is to interfere in the communication between a boy's parents and his health care provider and to forcibly injecting anti-circumcision propaganda that has little to no factual basis or relevancy - in the hope of influencing a parent's decision.



FALSE AND MISLEADING INFORMATION

The bill requires that parents must receive a circumcision-specific consent form that includes dozens of controversial statements that are false, misleading, lacking context, or biased. These include (refutations are in the footnotes):


  • that circumcision "is a medically unnecessary cosmetic procedure." [12]

  • that foreskin comprises up to 50% of the penile skin. [13]

  • that circumcision "is extremely painful and traumatic." [14][15]

  • that circumcision "causes some infants to go into shock." [16]

  • that circumcision "can result in behavioral and neurological changes." [17][18]

  • that pain relief doesn't prevent pain during and after the procedure. [19]

  • that the average foreskin area is about 15 square inches. [20][21]

  • that foreskin is "very sexually sensitive tissue. [21][22]

  • that foreskin protects the head of the penis. [23]

  • that foreskin enhances sexual pleasure. [21][22][24][25]

  • that foreskin facilitates intercourse. [25][26]

  • that circumcision is associated with 20 to 47 complications [27][28]

  • that any "long-term impact of newborn circumcision on the physical, sexual, emotional, and psychological health, self-esteem and well-being of boys and adult men has never been followed is only now being explored and publicized in response to increasing complaints from circumcision sufferers and those pursuing foreskin restoration." [29]

  • that circumcision denies a boy bodily integrity and autonomy which he may resent later. [30]

  • that no national medical organization in the U.S. recommends circumcision. [31] 

  • that all international medical organizations outside of the U.S. actively discourage newborn circumcision and warn of long-term harmful sexual and psychological consequences. [32]

  • that "there are no proven medical benefits." [33]

  • that potential benefits would be realized by ... 1 in 100 to 1 in 100,000 circumcised boys." [34]

  • that the most common complication is meatal stenosis, which may be as high as 20%." [35][36]

  • that infant circumcision doesn't protect against HIV or other STDs. [37]

  • that the actual medical need for circumcision is as low as 6 in 100,000. [38]

  • that a decision not to circumcise "entails no risks when all caregivers avoid improper foreskin interventions, and are educated about normal development, proper care and hygiene." [39]


A recent Supreme Court decision suggests that forcing medical professionals to provide this set of controversial statements, many of which lack contest and a scientific basis, may violate the First Amendment. [40]



ADDITIONAL REQUIREMENTS

HB 1706 would require that parents be shown the medical restraint and circumcision tools before they sign the consent form. The bill provides no explanation as to why this step is necessary or beneficial to the patient. It is doubtful that parents are required to see medical instruments and devices before any other medical procedure.


The bill states that parents who choose against circumcision must receive a brochure on how to care for their son's uncircumcised penis. Inexplicable the bill doesn't require that parents who choose in favor of circumcision be provided information on how to care for their son's circumcised penis. This omission shows that the provision is not about ensuring proper care of the penis.


Prior to approving consent forms and "intact care" forms, the Department of Health and Human Services (DHHS) would be required to provide free copies of such forms to anti-circumcision groups. DHHS must receive and consider their input before approving the forms. Tellingly, the bill doesn't require that DHHS seek input from medical experts, such as the CDC, the AAP, or physicians based in the state of New Hampshire or elsewhere.


The bill would require that a patient's health care provider must keep the consent form on file for at least 25 years and make it available it to the patient at no cost. No reason is given for this requirement, and we are unaware of any law that has this stipulation for any other medical procedure.



CONCLUSION

HB 1683 and HB 1706 were written by intactivists to enforce an ideological agenda that is not based on the best medical evidence and is contrary to standard medical care. HB 1706 is particularly sinister, poorly written, and legally dubious. There is no justification for different standards based on whether circumcision is performed for a medical reason, for a religious reason, or for any other reason - including risk reduction. Limitations on what a health care provider can or cannot say may violate the Free Speech clause of the First Amendment. Moreover the burdensome requirements for single parents and the supplanting of court orders and parental agreements may violate the Due Process Clause of the Fourteenth Amendment. [41]


Government has no business interfering with a parent's medical decisions nor the communications between parents and the medical team. We encourage medical professionals and Granite State residents to contact New Hampshire state officials, share this article, and explain why they should oppose HB 1683 and HB 1706.



We also recommend contacting the CDC and the AAP.



RELATED



[1] Anthony Losquadro; "How Bodily Autonomy is Personal Freedom in New Hampshire"; Intaction YouTube channel (4:45-4:55); January 4, 2024

[2] NH HB 1683; LegiScan; viewed January 7, 2024

[3] Susan Blank M.D. et al; "Male Circumcision: Technical Report"; Pediatrics; September 2012. Circumcision opponents have tried to dismiss the AAP statement by claiming that all AAP policy statements automatically expire after five years unless renewed. Nevertheless, the AAP Policy Statement has been cited by federal and state government agencies when making policy decisions with respect to financial coverage for newborn circumcisions. See for example

[4] NH HB 1706; LegiScan; viewed January 7, 2024

[5] A 2022 California law would have disciplined physicians "for sharing information that departs from the 'contemporary scientific consensus' on Covid-19 with their patients." After a federal judge granted a preliminary injunction and two days after the plaintiffs asked the court to permanently block enforcement, Governor Gavin Newsom signed a bill repealing the law. A similar fate might await HB 1706 if it were enacted and then challenged in court. Joe Martyak; "In NCLA Victory, Gov. Newsom Repeals Law Censoring Doctors' Covid-19 Medical Advice"; Fox 2 Now; October 2, 2023

[7] "Newborn male circumcision"; Canadian Paediatric Society; September 8, 2015; Reaffirmed January 1, 2021

[8] "Circumcision of Infant Males"; Royal Australasian College of Physicians; December 2022

[9] "Risk Factors for Penile Cancer"; American Cancer Society; Last Revised June 25, 2018

[10] Steve Anderson; "Almost Three Quarters of Danish People 'Want to Ban Circumcision'"; Independent; October 25, 2014. "In the survey of 1,000 Danes, commissioned by Danish newspaper Metroxpress, 74% of respondents agreed that there should be a full or partial ban on circumcision, with only 10% saying they supported the right for parents to choose whether their sons have the procedure, according the English language news site The Local."

[12] Circumcision provides both medical and cosmetic benefits. One can argue that the foreskin is a medical unnecessary flap of skin.

[13] Melanie Lindwall Schaab MS RN; "15 Square Inches?? Not So Fast."; Shabbling Shire Shoppe; June 23, 2017. "If we just take the simple averages of the length of the penis (9.3 cm flaccid) and the length of the foreskin (3.8 cm), the foreskin makes up 29% of the skin of the penis... It is only by making the most extreme comparison that we can finally get the number over 50% (or, on the other extreme, only 6%), in accordance with intactivist claims that the foreskin makes up 50% or more of the skin of the penis... Most likely, the foreskin makes up less than a third of the skin of the penis."

[14] Andrew Gross; "Does circumcision cause psychological trauma?"; Circumcision Choice; February 7, 2019. "As the CDC put it, 'there is no high-quality evidence in the scientific literature that indicates medical male circumcision results in long-term psychological consequences.'"

[15] The standard of care recommended by the American Academy of Pediatrics is for all patients to be given adequate pain relief, which can significantly alleviate pain. (n [3])

[16] "Controversial doctor claims that babies go into 'mental shock'"; Circumcision Choice; February 15, 2020.

[17] Andrew Gross; "Does newborn circumcision affect adult behaviors?"; Circumcision Choice; January 20, 2021

[18] "Did an MRI show that circumcision permanently alters the brain?"; Circumcision Choice; February 12, 2022

[19] "Summary of Public Comments and CDC Responses to Public Comments for Information for Providers to Share with Male Patients and Parents Regarding Male Circumcision and the Prevention of HIV infection, Sexually Transmitted Infections, and other Health Outcomes", p 22; Centers for Disease Control and Prevention: August 2018. "Appropriate use of analgesia ... can substantially control pain for infants, children, and adults during and after the procedure."

[20] Stephen Moreton PhD; "The '15 square inches' myth"; CircFacts; December 2016. "Measured foreskin surface areas ranged from a mere 7 cm2 (1.1 square inches) to a whopping 99.8 cm2 (15.5 square inches). This is a full order of magnitude. The average was around 38.5 cm2 (6.0 square inches)."

[21] Andrew Gross; "15 square inches of erogenous tissue?" Circumcision Choice; March 21, 2020

[22] "Of all the nerves"; Circumcision Choice; March 2, 2018

[23] "The 16 foreskin functions"; Circumcision Choice; November 22, 2017.

[24] Andrew Gross; "Sex as the researcher intended it"; Circumcision Choice; April 14, 2018

[25] "The gliding function"; Circumcision Choice; July 15, 2021

[26] Andrew Gross; "The Styrofoam Vagina"; Circumcision Choice; May 15, 2018

[27] The AAP has stated that only about 1 in 500 infant circumcisions result in significant complications, and most complications are easily treated with immediate medical intervention. (n [3])

[28] We have been unable to find even one reported case of death from a circumcision performed on a healthy neonatal male patient in the first 48 hours at a U.S. hospital in the past 70 years. "This meme proves that circumcision is safe"; Circumcision Choice; August 21, 2018. "Circumcision deaths"; Circumcision Choice; March 6, 2021.

[29] This statement is misleading because studies show that the overwhelming majority of circumcised men are happy or unconcerned and reports of men complaining are rare compared to the overall population of circumcised men. See YouGov survey of 1,000 men; YouGov; Released February 3, 2015

[30] This statement is biased because there are several reasons that a boy or man may want to have been circumcised at birth, and a decision not to circumcise denies him certain medical benefits (e.g. protection against first year UTIs, protection against penile cancer) that can only be obtained when the procedure is performed in infancy.

[31] This statement is misleading. The U.S. Centers for Disease Control & Prevention and medical organizations like the American Academy of Pediatrics support a parent's right to choose circumcision.

[32] This statement is false. The Canadian Paediatric Society, the Royal Australasian College of Physicians, and the World Health Organization do not discourage circumcision. On the contrary, they all support parental choice.

[33] The AAP, CDC, CPS, RACP, and WHO all agree that infant circumcision provides medical benefits.

[34] "Is it true that just 1 in 16,667 men will require a circumcision?" Circumcision Choice; November 19, 2018. "A 1953 study found that 35% of uncircumcised British soldiers would have benefited from circumcision and 14% needed it. A 1966 study found that 8.8% of young German men had phimosis. And a 2016 study reported that 5% of Danish boys under 18 suffered a foreskin complication significant enough to require treatment at a medical center. About 31% of the patients required surgery, and the average age at the time of surgery was 11 years."

[35] Brian J. Morris, John N. Krieger; "Does circumcision increase meatal stenosis risk? - A systematic review and meta-analysis"; Urology; 2017. "[Meatal stenosis] risk after circumcision is low (< 1%). Weak evidence suggests that [meatal stenosis] risk might be higher in circumcised boys and young adult males. Risk is reduced by petroleum jelly application."

[36] Susan Blank; Technical Report. "Acute complications are usually minor and most commonly involve bleeding, infection, or an imperfect amount of tissue removed." (emphasis added)

[37] CDC; Information for providers... "Male circumcision reduces, but does not eliminate, the risk of acquiring HIV and some STIs during penile-vaginal sex."

[38] 1 in 16,667 men. "In conclusion, the 1 in 16,667 statistic is based on an anti-circumcision activist’s reference to an unverifiable source for a 48 year-old study that requires broad assumptions and ignorance of actual medical studies about foreskin complications."

[39] Even when proper care and hygiene are performed, foreskin increases the risk of phimosis, UTIs, STDs, penile cancer, zipper injuries, and sex-related injuries.

[40] National Institute of Family and Life Advocates v Becerra 585 U.S. (2018). "The unlicensed notice unduly burdens protected speech. It is unnecessary to decide whether Zauderer’s standard applies here, for even under Zauderer, a disclosure requirement cannot be 'unjustified or unduly burdensome.' Disclosures must remedy a harm that is 'potentially real not purely hypothetical,' and can extend 'no broader than reasonably necessary,' California has not demonstrated any justification for the unlicensed notice that is more than 'purely hypothetical.' The only justification put forward by the state legislature was ensuring that pregnant women know when they are receiving medical care from licensed professionals, but California denied that the justification for the law was that women did not know what kind of facility they are entering when they go to a crisis pregnancy center. Even if the State had presented a non hypothetical justification, the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services, but not those that provide, e.g., nonprescription birth control. Such speaker-based laws run the risk that 'the State has left unburdened those speakers whose messages are in accord with its own views.'” (emphasis added, legal citations redacted)

[41] Troxel v. Granville, 530 U.S. 57 (2000). The Due Process Clause "provides heightened protection against government interference with certain fundamental rights and liberty interests ... including parents' fundamental right to make decisions concerning the care, custody, and control of their children."



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