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Federal Judge Strikes Down Ban on Female Genital Mutilation

By William Vogeler, Esq. on November 27, 2018 | Last updated on March 21, 2019

A federal judge in Detroit dismissed charges against doctors and others for female genital mutilations, saying a federal ban against the procedure was unconstitutional.

Judge Bernard Friedman said Congress "overstepped its bounds" by enacting a 1996 statute that prohibited the practice. Friedman said it is a matter for the states, and the federal government did not have authority as it claimed under the Commerce Clause.

Defendants still face other charges, but not for mutilating the nine girls in the case. That's because Michigan didn't criminalize their acts until after the fact.

Female Mutilation

Female genital mutilation typically involves removing part or all of the clitoris. According to the World Health Organization, many cultures do it because they believe it keeps girls chaste.

It is a common practice in parts of Asia, Africa, and the Middle East. However, it is illegal in 30 countries and 26 states in the U.S.

Dr. Jumana Nagarwala allegedly performed the surgery on nine girls, and Dr. Fakhruddin Attar reportedly allowed him to do it at his Michigan clinic. Assistants and parents were also charged for bringing the children from out-of-state for the procedure.

The government argued that the Commerce Clause gave Congress the power to ban the practice. But the judge said female genital mutilation "cannot, by any stretch of the imagination, be classified as an economic or commercial activity."

Not Economic

Friedman cited United States v. Morrison, which struck down the federal Violence Against Women Act. The law gave victims a private right of action in crimes based on gender.

In that case, Friedman said, the Supreme Court found such violence is not economic and part of commerce. That reasoning applies to female genital mutilation, he said.

"As despicable as this practice may be, it is essentially a criminal assault, just like the rape at issue in Morrison," the judge said.

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