The Unkindest Cut
By the standards of small-town lawyers, Zenas Baer has done it all. In a two-decade career working out of his hometown of Hawley (pop. 1655) in northwestern Minnesota, Baer has represented accused murderers, Native American governments, the City of Hawley, and, in one notorious case, a defendant in Minnesota's only recorded casino heist. Despite the breadth of experience, the 51-year-old Baer seems destined to be remembered for what has been a relatively minor component of his practice: a quixotic, dogged, and wholly unsuccessful legal crusade against the most common surgical procedure performed in the U.S. today, the circumcision of infant boys.
A federal judge court rejected Baer's first "anti-circ" lawsuit back in 1996. In that case, Baer sought to have a North Dakota law barring female genital mutilation declared unconstitutional. (The law had been enacted to protect the daughters of African and Middle Eastern immigrants from ritual cutting of the clitoris.) Why? Because preserving the "genital integrity" of girls without affording the same protection to boys, in Baer's view, violates the equal protection clause of the Constitution. A federal judge, and a federal appeals court, disagreed.
Not dissuaded, Baer took a different tack in his latest anti-circ effort. In that lawsuit, he argued that a doctor and hospital in Fargo should be held liable for failing to fully inform the parents of Josiah Flatt about the risks and consequences of circumcision. While the boy suffered no serious complications from his circumcision and his parents signed a standard consent form, Baer maintains that the removal of the foreskin will lead inevitably to reduced sexual sensation later in life.
After a 10-day trial, a jury found the doctor not liable; a judge earlier dropped the hospital from the case. Despite the setbacks, the earnest and plainspoken Baer was optimistic last week, when City Pages talked to him about his prospects on appeal, the anti-circ movement, and the reasons an ancient religious ritual has become an ingrained feature of modern American medicine.
City Pages: How did you become interested in the issue of, as you say, "genital integrity"?
Zenas Baer: I was approached by some folks in 1995. They were looking for an attorney to challenge a North Dakota statute which made it a felony to alter female genitalia if the female was under the age of 18, but provided no protection for male genitalia. I did some reading on the issue and I concluded that circumcision is a very barbaric procedure perpetuated by a medical community that has no medical reason to continue it.
Usually before a medical doctor will do surgery, they'll have a diagnosis. A ruptured appendix. A broken bone. A gallbladder. There is always a diagnosis. With circumcision, what is the diagnosis? A normal, healthy newborn male. If you don't have that diagnosis, then you can't do a circumcision. Why the hell are doctors fiddling with a normal, healthy newborn male? To make him more perfect? That's the bizarre thing about it.
CP: In your current case, your plaintiff, Josiah Flatt, underwent a normal circumcision that, by all accounts, was not botched. Where is the harm?
Baer: The harm is the loss of the most erogenous tissue of the human body--a bundle of nerves, blood vessels, and tissue that was amputated without medical reason or medical benefit. And to say this is a normal circumcision is a little bit misleading. What happened was, when they did the circumcision it was asymmetric. A flap of foreskin re-adhered to the glans penis. On the left side, there was an extra fold of skin that was grown together with the glans. When [Josiah's parents] noticed that, they started asking questions: Is it going to impact function? Is he going to have to have another surgery? They started doing some research, and they concluded that if they knew the risks, they would have never consented.
CP: How big is the anti-circumcision movement? Is it making headway?
Baer: It's hard for me to judge the anti-circumcision movement. I don't belong to any anti-circumcision organizations, so I can't really judge the size. But I will make this observation: On the West Coast, only 40 percent of the baby boys born are being cut. That would suggest that on the West Coast you either have much more enlightened parents, an immigrant population that doesn't come from a cutting culture, or a medical community that takes seriously their obligation "First, do no harm." As the rate of circumcision falls, you will naturally have a greater number of people involved in the no-circ movement. Just by making that choice, they are involved, whether they know it or not.
CP: Do you think circumcision will ever become rare in the U.S?
Baer: I think there is a chance it will become little more than an anomaly. The justifications used today for circumcision are as specious as those justifications used at the turn of the century, when it was claimed that circumcision cures alcoholism, promiscuity, eczema, club foot, and scoliosis.
CP: How much money do American hospitals make from circumcision?
Baer: That's a good question. I think the AAP [American Academy of Pediatrics] statement says it is from $170 million to $250 million [annually]. That figure is subject to much debate because it only identifies doctors' fees. It does not include the hospital charges, nor the additional hospital stay required as a result of the circumcision. I have heard that $500 million to a billion a year is being generated by this procedure. In the U.S. And if you look at circumcision, it really is only practiced in the U.S. Assume for a moment that in the next 10 minutes, 100 babies are born worldwide. Only three of those babies will be circumcised, and two out of those three will be from the United States.
CP: What are the most interesting responses you have received for your anti-circumcision efforts, both positive and negative?
Baer: The people who comment fall into two categories. Some don't understand the issue, and think that it is just a way for me as a lawyer to gain notoriety and try to get some money. I've had hate e-mails from Florida and other places on the East Coast that call me a gold-digging lawyer, and holding up this suit as exhibit A on the need for tort reform. The other people say, "My God, I didn't know that's what we're doing to kids. If people only knew, it would not continue." Most of the response has been very positive. I got an e-mail the other day with the subject heading, "Zenas, my hero."
CP: Are you circumcised?
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