Judge Declares Law Against Female Genital Mutilation Unconstitutional
Detroit, MI – A U.S. District Court Judge has declared that a 22-year-old federal law against female genital mutilation is unconstitutional, and dismissed key charges against two Michigan doctors and six other adults accused of performing the procedure on at least nine underage girls.
U.S. District Court Judge Bernard Friedman filed the decision on Tuesday, and claimed that Congress was out of line when they criminalized the cutting practice, CNN reported.
"Congress overstepped its bounds by legislating to prohibit [female genital mutilation]," Friedman wrote.
He said that female genital mutilation is a “local criminal activity” that should be regulated by individual states – not the federal government.
"As laudable as the prohibition of a particular type of abuse of girls may be…federalism concerns deprive Congress of the power to enact this statute," Friedman wrote, according to the Detroit Free Press.
"There is nothing commercial or economic about FGM," Friedman continued. "As despicable as this practice may be, it is essentially a criminal assault…FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The commerce clause does not permit Congress to regulate a crime of this nature."
Friedman also dismissed nearly all of the charges pending against two Michigan doctors and six other adults who subjected at least nine underage girls from Illinois, Minnesota, and Michigan, to the procedure.
It was the first time a female genital mutilation case had been challenged in federal court.
According to court documents, many of the children screamed, cried, and bled during the after-hours surgeries. At least one was sedated with Valium to calm her down.
Friedman’s decision also dismissed charges against three mothers, two of whom tricked their 7-year-old girls into believing they had traveled to Detroit for a girls’ weekend, according to prosecutors.
Emergency room physician Dr. Jumana Nagarwala was the lead defendant in the case, CNN reported.
Dr. Fakhruddin Attar, his wife, Farida Attar, and five other Michigan and Minnesota residents were also charged.
According to the criminal complaint, Attar, an internal medicine physician, permitted Nagarwala to perform the procedures after-hours at his clinic in Livonia, Michigan.
Farida Attar and the others listed in the criminal complaint were accused of helping Nagarwala during the mutilation surgeries, which were performed on children between the ages of seven and 13.
At least nine girls were forced to undergo the procedures at the clinic from 2015 until April 21, 2017, but prosecutors alleged that Nagarwala may have mutilated the genitals of as many as 100 girls over a 12-year period, the Detroit Free Press reported.
The defendants are members of the Dawoodi Bohra, a small Indian Muslim sect with a mosque in Farmington Hills.
The group argues that female genital mutilation is a religious rite of passage.
“Dr. Nagarwala is just a wonderful human being,” her attorney, Shannon Smith, told the Detroit Free Press. “She was always known as a doctor with an excellent reputation.”
"The whole community was shocked when this happened. She's always been known to be a stellar doctor, mother, person,” Smith added.
But for 35-year-old social activist Mariya Taher, who was forced to undergo the procedure at the age of seven, the judge’s ruling came as a major blow.
"This is a violation of one person’s human rights,” Taher said. “It's a form of gender violence…This is cultural violence.”
“Unfortunately, this is going to embolden those who believe that this must be continued…they’ll feel that this is permission, that it’s OK to do this,” she added.
The federal law banning the procedure was signed on Sep. 30, 1996.
“There is no medical reason for this procedure,” U.S. Senator Harry Reid said at the time. “It is used as a method to keep girls chaste and to ensure their virginity until marriage, and to ensure that after marriage they do not engage in extramarital sex…It deals with the most inhumane thing a person can imagine.”
Equality Now Executive Global Director Yasmeen Hassan also blasted Friedman’s ruling, and called it a “federal blessing” for female genital mutilation.
"In this day and age, for FGM to still occur — and a federal government can’t regulate this with a human rights violation — is very bizarre," Hassan said. "This is not what I expected. It's so not what I expected."
The World Health Organization has long declared female genital mutilation to be a human rights violation, and the practice has been banned in 44 countries, CNN reported.
Smith said she expects the government to appeal Friedman’s decision, but noted she was “confident we will win even if appealed,” the Detroit Free Press reported.
“I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will," Michigan Senator Rick Jones said in a statement, according to the Detroit Free Press.
“This is why it was so important for Michigan to act. We set a precedent that female genital mutilation will not be tolerated here, and we did so by passing a state law that comes with a 15-year felony punishment," the senator said. "I hope other states will follow suit.”
Twenty-seven states currently have laws criminalizing female genital mutilation.
Michigan’s law passed in 2017 in the wake of the charges against Nagarwala and the Attars, but cannot be applied retroactively in their case, the Detroit Free Press reported.
Nagarwala still faces charges of conspiring to obstruct an official proceeding and conspiring to travel with intent to engage in illicit sexual conduct, CNN reported.
Her trial is set to begin on April 29, 2019.