Federal Ban on Female Genital Mutilation Ruled Unconstitutional by Judge

From The New York Times:  https://www.nytimes.com/2018/11/21/health/fgm-female-genital-mutilation-law.html

By Pam Belluck
Nov. 21, 2018

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 United States 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,” Judge 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 longstanding tradition and our federal system of government, is for the states to regulate, not Congress.”

Gina Balaya, a spokeswoman for United States 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.

Continue reading at:  https://www.nytimes.com/2018/11/21/health/fgm-female-genital-mutilation-law.html

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