Federal Judge Rules Female Genital Mutilation Ban Is Unconstitutional

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Image Credit: Henry Ford Health System

A Michigan federal judge has declared unconstitutional the U.S. law banning female genital mutilation, dismissing charges against a Michigan doctor who performed the procedure on several young girls, including two from Minnesota.

U.S. District Judge Bernard Friedman ruled Tuesday that Congress does not have the authority to make female genital mutilation (FGM) illegal — the decision should be left up to individual states.

While Friedman referred to the practice as a “criminal assault” in his decision, he ultimately ruled that it is “local criminal activity” which would have to be handled by each state.

“As despicable as this practice may be, it is essentially a criminal assault,” Friedman wrote in the decision. “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.”

“Application of these principles to the present case leads to the conclusion that Congress overstepped its bounds by legislating to prohibit FGM,” Friedman added. “Like the common law assault at issue in Bond, FGM is ‘local criminal activity’ which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.”

The case at issue involved Dr. Jumana Nagarwala who was the first of several individuals to be arrested by federal authorities during the summer of 2017 for cutting the genitalia of young girls in a Detroit clinic.

Two Minnesota girls approximately 7-years old were the main focus of the case. Both girls were taken to the clinic in Michigan by their mothers for the illegal procedure. The exact number of victims is unclear — prosecutors believe more than 100 girls could have visited the clinic for the female genital cutting procedure during a 12-year period.

Friedman dismissed the main charges against Nagarwala, and seven other individuals involved with the case saw their charges dropped. Conspiracy and obstruction charges remain.

According to the World Health Organization, female genital mutilation is identified as “procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons.”

Though it has no health or medical purpose, the practice is a popular tradition in eastern cultures. Somalia has the highest prevalence rate of female genital mutilation on the continent of Africa – with approximately 99 percent of women between the ages of 15 and 49 undergoing the procedure according to a UNICEF study in 2014.  

State Rep. Mary Franson (R-Alexandria) has been a strong advocate against female genital mutilation and authored legislation last session to protect girls from FGM and punish parents who force their daughters to undergo the practice. The bill received bipartisan support in the House, passing on a near unanimous 124-4 vote. However, the Senate failed to act on the subject, and the legislation never received a committee hearing or a vote on the Senate floor.

Franson says Friedman’s ruling “underscores the dire need” for the legislature to take action against the procedure and protect girls from FGM.

“This ruling underscores the dire need for both bodies of the Minnesota legislature to pass my bill to protect girls from female genital mutilation,” Franson said. “I will again be introducing this legislation in the upcoming session, and will promptly request a hearing with the new Democrat chair. There is strong bipartisan consensus to get this done, as the House approved my bill by an overwhelming margin last session.”

“I will never stop fighting for the safety of little girls, and time is long overdue for Minnesota to put an end to this barbaric practice and punish parents who subject their daughters to these horrors,” Franson added.

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