Court Tentatively Decides That State Law Preempts Proposed San Francisco Ban on Circumcision of Boys

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §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 statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety.

Why didn’t the court simply hold that the ban couldn’t be applied to doctors, but could be applied to others (such as mohels)? The opinion doesn’t say, but it could be that the judge concluded that if such an important part of the proposal is preempted, the proposal has to be entirely removed, perhaps because voters who vote for the proposal as written might well not have voted for a radically narrowed proposal. (That’s the “severability” question, which often arises both as to voter initiatives and legislatively enacted statutes; there’s a complex body of law related to that in each state.) Or perhaps the court was influenced by the argument that a circumcision restriction limited to non-medical-professions would in effect apply solely or almost solely to religious circumcisions, and would thus be impermissibly targeted against religion.

In any case, unless the decision is reversed on appeal (unlikely, I think), it now appears that there will be no legal battle about the difficult constitutional issues here, whether having to do with parental rights or federal and state religious freedom constitutional provisions. The dispute would have to await either a California statute or a state statute or local ordinance in some other state, and neither option seems terribly likely politically. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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