By Samantha Schmidt
November 21, 2018
A federal judge dismissed criminal charges against two doctors in a landmark female genital mutilation case and ruled that Congress “overstepped its bounds” by passing a law banning the procedure.
The case centred on two Michigan doctors and six others charged last year in connection with arranging to perform female genital mutilation on nine girls, four from Michigan and five of whom were brought to the state from Illinois and Minnesota.
While female genital mutilation has been a federal crime in the United States for more than two decades, the Michigan doctors were the first to be charged under the law. U.S. Immigration and Customs Enforcement touted the indictments at the time, saying the charges “will hopefully deal a critical blow to stamping out this inhumane practice.”
But on Tuesday, U.S. District Judge Bernard Friedman found the federal ban unconstitutional, ruling that, among other reasons, female genital mutilation is a “local criminal activity” that must be regulated by the states, not Congress.
He dismissed most mutilation and conspiracy charges against Jumana Nagarwala, the physician who was accused of performing the procedures, and Fakhruddin Attar, the doctor who was accused of allowing his clinic to be used for the surgeries. Those charges were also dismissed against two others accused of assisting in the surgeries and four mothers who were accused of bringing their daughters to the clinic for the procedure.
Through her defense lawyer, Nagarwala has denied performing female genital mutilation and maintains she performed a religious procedure that did not involve cutting the genitalia. The doctors and Attar’s wife are members of a small Muslim sect known as the Dawoodi Bohra.
Genital mutilation is the removal of all or part of a female’s genitals for nonmedical reasons. It is condemned by the United Nations and considered a human rights violation, but the practice is common for girls in parts of Asia, Africa and the Middle East. The World Health Organization says more than 200 million women and girls living in 30 countries have experienced FGM, the common acronym for female genital mutilation.
Lawyers for Nagarwala asked the judge to dismiss the charges on the basis that Congress did not have the authority to prohibit female genital mutilation. The judge agreed, ruling that the law could not be permitted under the Commerce Clause of the Constitution.
“There is nothing commercial or economic about FGM,” Friedman said.
Friedman said the government failed to show that the procedure is a commercial activity or interstate market that would be subject to federal law, such as the markets for illegal drugs and pornography.
“This is not a market, but a small number of alleged victims,” Friedman said. “If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?”
The government had also argued that female genital mutilation is an “illegal form of healthcare” and could therefore be regulated by Congress. But the judge pushed back against that argument, saying the procedure is “a form of physical assault, not anything approaching a healthcare service.”
Friedman also rebutted the government’s suggestion that variances in state laws mean that those seeking female genital mutilation can “travel to refuge states where the practice is not prohibited.”
“No state offers refuge to those who harm children,” Friedman responded. He also noted that 27 states have passed laws that criminalize female genital mutilation. Moreover, since the procedure involves unlawful touching and penetration, it could also be prosecuted as criminal sexual conduct, the judge wrote.
Michigan was one of several states that rushed to pass bans against female genital mutilation amid the high-profile case last year. The law applies to doctors who perform the surgery and parents who transport a child to it.
The Department of Justice could not be reached for comment Tuesday, but a spokeswoman told the Associated Press that the U.S. attorney’s office is reviewing Friedman’s ruling.
In a statement Wednesday, lawyers on behalf of Nagarwala celebrated the judge’s opinion.
“Yesterday’s decision by the Court is exactly what our justice system is designed to do,” read the statement from Shannon Smith and Molly Blythe. “The judge found Congress, through the United States Constitution, lacked authority to enact the FGM statute. The law warranted this decision and we are happy with it.”
Nagarwala and other defendants still face obstruction charges; they are accused of telling members of their community not to cooperate with investigators. Nagarwala also remains charged with conspiracy to travel with the intent to engage in illicit sexual conduct, and she is expected to face trial in April, according to the Detroit Free Press.
Samantha Schmidt is a reporter covering gender and family issues.