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Circumcising History and Tradition
Moraga, Pablo
Moraga, Pablo
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Circumcising History.pdf
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Abstract
The right to alter the bodies of children has recently reentered
public debate: over the past few years, dozens of state bills have prohibited
gender-affirming care for minors. These bills raise important questions about
the rights of parents to make medical decisions for their children, questions that
the Supreme Court determined on equal protection grounds in Skrmetti this
term. When the Nebraska Legislature deliberated their gender-affirming care
prohibition in 2023, Nebraska State Senator Carol Blood asked a bold question:
"how come we're not talking about circumcision?"
As "intactivists" continue to rally against routine infant penile
circumcision, and some jurisdictions consider laws prohibiting it, this article
argues that the way the history-and-tradition test has been applied would
uphold circumcision bans as much as it has upheld gender-affirming care bans.
Through a meticulous review of the history of circumcision, including archival
research, this article shows that the English common law was against
circumcision and its modem-day, medicalized practice is not so "deeply rooted
in our Nation's history and tradition." However, would a reviewing judge
sustain a circumcision ban as they had a gender affirming care ban? Likely, no.
The history-and-tradition test offers no determinate results. This article evokes
the circumcision ban hypothetical to expose the history-and-tradition test as an
attempt to mask what has always been a value-laden methodology that requires
us to harken to a dark and ugly past.