Federal Ban on Female Genital Mutilation Ruled Unconstitutional by Judge
Posted November 21, 2018 7:52 p.m. EST
More than two decades ago, Congress adopted a sweeping law that outlawed female genital mutilation, an ancient practice that 200 million women and girls around the world have undergone. But a federal court considering the first legal challenge to the statute found the law unconstitutional on Tuesday, greatly diminishing the chances of it being used by federal prosecutors around the country.
A federal judge in Michigan issued the ruling in a case that involved two doctors and four parents, among others, who had been criminally charged last year with participating in or enabling the ritual genital cutting of girls. Their families belong to a small Shiite Muslim sect, the Dawoodi Bohra, that is originally from western India.
The case, the first to be brought under the 1996 law that criminalized female genital mutilation, has been closely followed by human rights advocates and communities where cutting is still practiced and whose members have moved in growing numbers to the United States and other western countries.
On Tuesday, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan ruled that Congress did not have the authority to pass the law against female genital mutilation, and he dismissed key charges filed against the doctors and removed four of the eight defendants from the case.
“As laudable as the prohibition of a particular type of abuse of girls may be,” he wrote, prosecutors failed to show that the federal government had the authority to bring the charges, and he noted that regulating practices like this is essentially a state responsibility. He rejected arguments that the law allowed for such a federal prosecution because Congress has a right to regulate commerce or health care or can enact laws to support international treaties that the United States has signed.
“Federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote. He added in the 28-page ruling, “Congress overstepped its bounds by legislating to prohibit FGM” because “FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”
Gina Balaya, a spokeswoman for U.S. Attorney Matthew Schneider in Detroit, said, “We are reviewing the judge’s ruling and will make a determination on whether or not to appeal.”
Lawyers for the defendants have argued that the Dawoodi Bohra practice is a protected religious procedure and is not mutilation but rather a “ritual nick” that doesn’t remove the clitoris or labia as do some forms of cutting.
Peter Henning, a law professor at Wayne State University and former federal prosecutor, said the judge’s ruling appeared to be solid and that, while 27 states have their own laws criminalizing the practice, other states would need to pass laws or use existing assault or abuse laws if they wanted to bring charges.
“Given how this statute is written, I think he’s correct,” Henning said. “I hate to say Congress whiffed, but they whiffed on this law. There isn’t a federal police power, so they can’t just adopt anything they want. It has to be located in one of Congress’ express powers and this wasn’t.”
Advocates fighting to end female genital cutting were dismayed by the ruling. Shelby Quast said her group, Equality Now, is urging federal prosecutors to appeal the decision. “We are confident that Congress had the authority to pass this FGM law,” she said.
Mariya Taher, a co-founder of Sahiyo, a group representing members of the Dawoodi Bohra sect who oppose cutting, said she appreciated that the ruling was not condoning female genital mutilation and that states still have options to bring cases. But she added that she is concerned about the message those who believe in cutting might draw from the decision.
“Is this something that proponents will use as a reason to say that ‘what we do isn’t harmful,’ almost giving them permission to do this?” she wondered. “The U.S. is looked to as a leader, so this could definitely have repercussions globally.”
In the Michigan case, Dr. Jumana Nagarwala, an emergency medicine physician and a member of the Dawoodi Bohra sect, is accused of cutting the genitals of nine girls. Dr. Fakhruddin Attar, an internist, is accused of letting Nagarwala use his now-closed Burhani Medical Clinic in Livonia, a Detroit suburb. His wife, Farida Attar, the clinic’s office manager, and another woman, Tahera Shafiq, were accused of assisting the doctors.
Friedman dismissed charges against Shafiq, as well as mothers of two girls from Minnesota and one girl from Michigan. Nagarwala, the Attars and a fourth mother remain charged with conspiracy to obstruct an official proceeding. Nagarwala is also charged with conspiracy to travel with intent to engage in illicit sexual conduct.
Molly Blythe, a lawyer for Nagarwala, said Wednesday that while pleased with the ruling, Nagarwala remains under home confinement and still has to face the other charges, which could carry a sentence of years in federal prison.
Legal experts said Congress could supersede the law with one that could pass muster, particularly by tying the cutting practice to aspects of interstate commerce, because Congress is allowed to make laws enforcing the Commerce Clause of the Constitution.
“There are ways that Congress could write a different statute that would be more closely connected to conduct that has an effect on interstate commerce,” said Michael Rosman, general counsel for the Center for Individual Rights, although he said he believed such a law would still be vulnerable to claims it violated equal protection or religious freedom.
Federal prosecutors argued that the law was linked to congressional authority to enforce the commerce clause, but Friedman rejected that.
“If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?” he wrote, adding “FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.”
The judge also disputed prosecutors’ argument that the law fell under a constitutional clause that allows Congress to enforce treaties, specifically the International Covenant on Civil and Political Rights. Friedman said the covenant’s language was too general, calling for nondiscrimination and “civil and political rights.” It is not “rationally related to the FGM statute, which prohibits the mutilation of girls’ genitalia.”