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Judge Rules Federal Law Banning Female Genital Mutilation Unconstitutional

By  Hank Berrien

On Tuesday, a Michigan federal judge ruled against the federal government when he found unconstitutional a federal law banning female genital mutilation (FGM). Reuters reported, “U.S. District Judge Bernard Friedman said Congress lacked authority under the Commerce Clause to adopt the 1996 law, and that the power to outlaw female genital mutilation, or FGM, belonged to individual states.”

As the Chicago Tribune reported, “Prosecutors allege that Nagarwala may have subjected up to 100 girls to the procedure over a 12-year period, though they have cited nine victims in the case: two 7-year-old girls from Minnesota; four Michigan girls ages 8-12, including one who was given Valium ground up in liquid Tylenol during her procedure; and three Illinois girls.”

In his decision, Friedman repeatedly referred to the practice of FGM, which involves the partial or total removal of the clitoris, as criminal assault, but decided that it was a crime that would have to be prosecuted under state law. He wrote, “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.” He added, “Application of these principles to the present case leads to the conclusion that Congress overstepped its bounds by legislating to prohibit FGM. 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.”

In the case, U.S. v. Nagarwala, the government had charged eight defendants with conspiracy to commit FGM over the span of 12 years. The case stated that Jumana Nagarwala is a doctor who sexually mutilated nine girls from Michigan, Illinois and Minnesota at the clinic of Dr. Fakhruddin Attar in Livonia, Michigan; that Farida Attar and Tahera Shafiq assisted Nagarwala in performing the procedure, and that four mothers Farida Arif, Fatema Dahodwala, Haseena Halfal, and Zainab Hariyanawala, brought their daughters to the clinic for the procedure. According to the government, four of the victims are residents of Michigan, three are residents of Illinois, and two are residents of Minnesota.

The defendants argued that Congress may exercise legislative authority only to the extent allowed by the Constitution, and that the only potentially applicable sources of congressional power — the Necessary and Proper Clause and the Commerce Clause — did not grant it authority to prohibit FGM. The federal government countered that each individual clause independently provided the authority to enact the statute.

27 states have strong laws criminalizing FGM; Michigan joined the list last year.

Molly Blythe, an attorney for Nagarwala, stated, “We are very excited about today’s ruling, although the victory is bittersweet given we fully anticipated our client to be vindicated at trial on those charges.”

The Washington Examiner countered, “Judge Friedman is ruling that transporting minors across state lines with the specific intention of soliciting the services of professional torture artists is not covered by the Commerce Clause, and thus, federal law should be stricken down. This isn’t only legally ridiculous; it’s moral bankruptcy of the highest order, a bending of the law to protect and normalize systemic violence against women … Even the most limited, contemporary reading of the Commerce Clause would allow Congress to protect minors from being forcibly shoved across state lines to undergo medically detrimental torture.”

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