Judge drops charges against Detroit doctor for practicing female genital mutilation, rules federal anti-FGM law unconstitutional

November 21, 2018 • 9:00 am

This new ruling by a Michigan judge is appalling, though it may hearten some Muslims, even in Western countries, who approve of and even practice female genital mutilation (FGM). As Heather Hastie has written, FGM is practiced widely by Muslims, and has been approved by several sects of Islam. It’s even practiced in the U.K. and U.S. The most notorious case here, and the first prosecution under federal law, was that of Dr. Jumana Nagarwala, who was arrested with several others last year on charges that she practiced or conspired to practice FGM on several girls in a Detroit-area clinic. As CNN reports,

The procedures Nagarwala is accused of performing occurred from 2005 to April 21, 2017, according to the criminal complaint. Prosecutors say that Attar, an internal medicine physician, allowed Nagarwala, an emergency room physician, to perform the banned procedures at his medical clinic in Livonia, Michigan, after it closed for the day. Nagarwala was allegedly assisted by Attar’s wife, Farida, and additional adults named in the complaint.

Nagarwala and the Attars are accused of instructing others not to speak about the procedures. The nine underage girls are from Michigan, Minnesota and Illinois and are between the ages of 8 and 13, according to court documents.

Nagrawala originally defended the operations based on the fact that FGM was simply her religious custom.

The charges were based on a 1996 federal law—the Female Genital Mutilation Act—that uses the interstate commerce clause to ban the odious practice on women under 18, for that is a federal law that can be used in such cases (otherwise the states must make their own laws). But it was this reliance on interstate commerce that was the prosecution’s undoing. As the Detroit News reports;

During a hearing this month, Nagarwala lawyer Molly Sylvia Blythe said Congress lacked authority to enact a law criminalizing female genital mutilation in 1996. Congress lacked authority under the Commerce Clause of the Constitution because the procedure has nothing to do with interstate commerce, she said.

Prosecutors countered, arguing the crime does involve interstate commerce. Christian Levesque, a trial attorney with the Justice Department’s Human Rights and Special Prosecutions section, noted the procedure involves parents using cellphones to arrange the procedure and transport children across state lines who undergo surgeries utilizing medical tools in state-licensed clinics.

And CNN reports:

The enactment of a law criminalizing female genital mutilation was not a permissible use of congressional power, Friedman wrote in his opinion, concluding that the law itself was unconstitutional.

“As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis,” Friedman wrote, later noting that the Supreme Court has said that individual states, not the federal government, have the authority to police local criminal activity.

Friedman also noted that although Congress may regulate a practice if it is “commercial or economic in nature and that substantially affects interstate commerce,” but “as despicable as [female genital mutilation] may be, it is essentially a criminal assault” and not a commercial or economic enterprise, Friedman wrote.

(You can see Friedman’s full decision here.)

What this represents, then, is a judge’s determination that federal law against FGM is unconstitutional because it didn’t fall under the aegis of federal authority (interstate commerce), but rather is a matter for state legislation. Apparently at the time, Michigan had no state law against FGM, though it passed one in 2017—too late to prosecute these defendants. Nagarwala’s lawyer expects the government to appeal, and I hope they do if there are reasonable grounds for appealing; but the prosecutors haven’t yet said what they’ll do.

This doesn’t mean that Nagarwala and the other defendants are completely off the hook. Even with the dropping of the most serious charges, Nagarwala and three other defendants still face charges of conspiracy and obstruction of justice, all of which can carry stiff penalties.

I am of course torn by this decision. FGM is an odious practice with horrible effects on the girls who are forced to undergo it, and it’s also one of the poisonous effects of religion.  But the judge’s ruling may be upheld if the case is appealed, for it’s not a slam-dunk to convict someone of FGM on the federal level if Congress didn’t have the authority to make the operation against federal law. And if there was no state law, well, then an evildoer walks free. Much as all of us hate FGM, without an applicable law this becomes equivalent to a criminal walking free because he wasn’t informed of his Miranda rights.

I’m not a lawyer, so I’m not sure if the government can make FGM against federal law using any rationale. If not, then every state needs to pass anti-FGM laws pronto. As of July of last year, only 26 of the 50 U.S. states had such laws!

66 thoughts on “Judge drops charges against Detroit doctor for practicing female genital mutilation, rules federal anti-FGM law unconstitutional

  1. Basing prosecutions like this on the interstate commerce clause is always tricky and can lead, in my opinion, to federal overreach. I saw this first hand when serving on a federal grand jury in Florida – repeated federal indictments of ex-felons who had not had all of their rights restored (which, at the time, was virtually all ex-felons in the state) for gun possession. The rationale was that if the weapon in question (in one case a nonfunctional antique shotgun) had ever crossed a state line, then interstate commerce was involved. Since no guns have ever been manufactured in Florida, that meant all guns, period. The upshot could be (and I’m sure has been) that the state wrongfully convicts an individual for some felony, who then serves his time but is prosecuted further for what would otherwise be legal activity.

    I share your revulsion at the practice of FGM, and I agree that it should be a felony. However, I also understand the judge’s constitutional position as well. And I would note finally that the opportunity for this kind of Federal overreach exists with respect to marijuana possession/use as well. While it is now legal in 10 states, it is still illegal under federal law, giving the Jeff Sessions’ of the world an opportunity to use ICC arguments to override state laws.

    1. Florida has its own state law prohibiting felons from owning or possessing firearms, Fla. Stat. section 790.23, so felon-in-possession cases can be prosecuted in state or federal court in Florida.

      Where Florida felons have had their rights restored by the Clemency Board, the restoration of rights will frequently exclude the right to firearm possession.

  2. I was relieved to see that the judge didn’t argue that the federal law was unconstitutional because of {{{**religious freedom **}}}

  3. I agree that basing such a law on the commerce clause of your constitution id dubious at best, but, as a foreigner, it surprised me that Congress can’t make a federal law without finding some way to hang it off the Constitution. Can’t it just make the law because FGM is a horrifying invasion of a person’s right not to be sliced up.

    Secondly, if FGM is a criminal assault, why can’t people who do it be charged with criminal assault?

    Finally, are steps being taken to withdraw this “doctor”‘s right to practise medicine?

      1. Well, Dr PCC(e) already answered the second;

        “Apparently at the time, Michigan had no state law against FGM, though it passed one in 2017—too late to prosecute these defendants.”

        Prior to 2017 FGM wasn’t defined as criminal assault in Michigan. It is now, but you can’t reach back before legislation has been enacted to enforce a law.

        1. -note also that assault charges can only be brought by the feds if the crime occurred on federal territory or was committed against a federal employee. The jurisdiction otherwise falls to local authorities, in this case the state of Michigan.

        2. Hmmm, so if someone slices up my face, that is criminal assault, but if they slice up my genitals, that’s OK? Does the state law define face-slicing as a criminal assault?

          1. If a plastic surgeon slices your face with your informed consent, it’s not an assault. The same logic applies where parents have consented to a surgical procedure on their minor children. That’s why we need specific laws proscribing FGM.

            Holding any slicing done on a child to constitute a criminal assault, even if done with the parents’ consent, would make make the doctors (and mohels) who perform male circumcisions nervous — not to mention pediatric surgeons generally.

            1. Suppose the parents themselves slice up their child’s face, that’s not illegal right, because they had their own consent?

              No, it is illegal. The same should surely apply to slicing upgrade genitals of your children.

              1. Civilians are generally prohibited from performing serious medical procedures, including on their own children (excepting in certain emergency situations). That includes slicing faces as well as slicing genitals.

                As I understand it, the FGM procedure in this case was done by licensed MDs. I take a backseat to no one in detesting female genital mutilation, but to prosecute medical professionals criminally for engaging in it, we need laws expressly prohibiting it.

              2. Pediatric surgeons routinely take scalpels to children with their parents’ informed consent. If there is no legitimate medical need for the procedure, I would expect that the pediatric surgeon might well face licensing and disciplinary issues with the state medical regulatory board.

                Do you really want criminal courts second-guessing medical decisions, on pain of imprisonment, absent an express penal statute prohibiting a specific procedure? Do you not see how that could have a chilling effect on a physician’s willingness to perform legitimate medical procedures?

              3. No I don’t think the same logic does apply. Surgeon’s cutting me up with my consent is different to surgeons cutting a child up with somebody else’s consent even if that somebody else is the child’s parent.

                And yes, if you can’t justify a medical procedure on a child as being for that child’s benefit, you should answer to the law.

                I wanted to avoid bringing male circumcision into the argument because a couple of times on other FGM threads in which I have participated, the mention of circumcision has caused the thread to derail to the chagrin of the women participating, but I will say one thing about it and then quit this thread for good (because of Da Roolz):

                Practitioners of male genital mutilation should be worried. What they do to infants is an assault and should be illegal even with the consent of their parents. I’m fine with people having themselves circumcised when they are old enough to consent, but it shouldn’t be done to babies.

        3. No I’m sorry that’s not good enough. FGM involves taking a knife and mutilating a female human being with it. How is that not an assault? Why does FGM have to be mentioned in a late to be illegal but (say) cutting somebody’s finger off doesn’t?

          1. Sorry it’s not good enough but I don’t make the laws. We can get all righteous about why FGM of minors isn’t assault, but I defer you to Ken’s post above.

            In short, often what was once considered acceptable and legal no longer is considered either. Everything from slavery to suffrage and beyond. In the past, a great deal of legal freedom was given to parents rights over the medical procedures their children undergo. We are still in the process of sorting these things out (should it be legal to allow minors to get hormone blockers, for example). This one seems a no-brainer to me (and you) but this is one of those things where it takes a legal distinction to make it an exception to parental rights.

    1. Under the US’s dual state/federal system of government, our national government is one of limited powers, as enumerated in the US constitution.

      Except as authorized by the constitution, the general police powers are reserved to the states. The criminal laws that fall within federal jurisdiction are those that involve the federal government directly (such as those that occur on federal lands or against federal officials, or involve a violation of a citizen’s federal rights) or that have an impact on commerce between and/or among the states.

    2. … it surprised me that Congress can’t make a federal law without finding some way to hang it off the Constitution.

      The Commerce Clause is Congress’ favorite go-to rationale for legislation, and it’s often stretched to the point of absurdity. But if a licensed physician charging money to perform ‘plastic surgery’ isn’t commerce, I don’t know what is.

      1. Thanks, that’s a good point, but would the commerce have to cross a state boundary somehow to become a federal issue? (I ask because I am British and I am not fully informed as to the federal law in the USA).

        1. No, the commerce would not necessarily have to cross state lines. It is a complicated system we have. Things have been held to affect interstate commerce even if they did not cross state lines.

      2. That is my opinion in this too. This doc was known throughout the country within her own community as someone who would perform FGM. She made money out of her reputation for doing that odious procedure.

        I also wonder if child abuse laws can be used here? Of course, in many states parents then cry religious freedom when that particular law is used, and that would probably be the case here as Michigan didn’t have a specific FGM law until this case came to light and they made one.

        I wonder if it’s possible for other states where the laws are better in relation to FGM could prosecute? However, that would mean finding someone, probably a child, who was prepared to go along with it. That’s very unlikely. If it’s someone a bit older who’s escaped the religion, it’s possibly been too long since the FGM was done so that wouldn’t work either.

        1. Perhaps a brave adult could file a civil suit against those who mutilated her as child. But of course she’d face fatwas and death threats for offending the Religion of Peace™

  4. There already are anti-FGM laws in every state. They are the laws that prohibit child abuse, which are broadly enough written to easily encompass FGM.

    The decision to leave most criminal laws in the hands of the states is debatable. Most federal nations (like Canada) have a single national criminal law. If the U.S. were to do that, it is likely that the very notable racial biasing that persists in the present highly dispersed justice system would be greatly reduced. On the other hand, there is the question of whether we want a greatly expanded federal police and prison agency to take over the regulation of our lives. We may applaud the anti-FGM law that was passed during the Clinton Administration, but how would we feel about laws added under other leadership?

    The present system has many inefficiencies and gaps, but freedom resides in the inefficiencies and gaps–for better or worse.

  5. Not to get too inside-baseball here, but for a long time, dating back to the days of Chief Justice John Marshall in the early 19th century, the courts held that congress’s powers under the Art. 1, Sec. 8 “commerce clause” were all but unlimited (being that one of the primary reasons the newbie United States had abandoned the original Articles of Confederation in favor of the Constitution was the restrictions the former permitted to be placed on interstate commerce).

    That jurisprudence went pretty much unchallenged for nearly two-centuries, until the Rehnquist Court held, in US v. Lopez (1995), that congress lacked authority under the commerce clause to create gun-free schools zones since such zones had an insufficient impact on interstate commerce to warrant the exercise of federal jurisdiction. (Limiting the scope of congress’s commerce-clause powers — which had expanded greatly in commercial cases during the New Deal — has been one of justice Clarence Thomas’s idiosyncratic hobbyhorses.)

    SCOTUS retreated from Lopez somewhat in Gonzales v. Raich <2005), which held that congress had the authority under the commerce clause to criminalize the personal use of homegrown marijuana for medicinal purposes (even where it was otherwise legal under the applicable state laws) even though the marijuana at issue had neither traveled in, nor was otherwise connected to, interstate commerce.

    On first blush, I don’t see how the decision regarding FGM in Michigan can be squared with Gonzales v. Raich and the Court’s earlier commerce-clause jurisprudence.

    1. So you think if the prosecutors appeal they will prevail? What is the “commerce” part of this case? Did the victims cross state lines?

      The “commerce” part of the clause is pretty important but sometimes the meaning of the word seems to be stretched a great deal.

      1. Under the case law I mentioned above, the impact on interstate commerce in general need only be de minimus. The most extreme example is Wickard v. Filburn (1942), wherein congress was found to have commerce-clause authority to regulate wheat production by a farmer who was growing it solely to feed the animals on his own farm.

        This power has frequently been held to extend to the regulation of medical facilities, since such facilities generally use equipment, or provided medicines, the have moved through interstate commerce. (This is the same power under which Republican congresses have endeavored to restrict abortions provided at clinics that operate solely in-state.)

  6. This would seem to imply that federal anti drug laws, such as against marijuana, are also be unconstitutional. How about sexual abuse of minors, which seems to be what FGM is about? Good luck on a Judge making those rulings!

    1. In the 1920s, when the interstate commerce law was taken seriously, it was understood that congress did not have the right to ban alcohol which is why prohibition required a constitutional amendment. Unfortunately, the supreme court has stretched the clause and drugs sold within a state are considered interstate commerce.

  7. Now that Trump is using the Federalist Society as gatekeeper to the federal judiciary, I have a bad feeling that we’re going to start seeing more and more rulings like this. The Federalist Society radicals want a powerless federal gov’t. The only federal power they like is the power to wage war. (Well, and maybe to ban abortion!) But clean water? Social Security? Heck, no. The 10th Amendment forbids it, says they. We’re going to be dealing with the sort of judges that FDR had in 1933, which is why he wanted to pack the court.

    1. The Rightwing has long felt itself aggrieved by Republican presidents’ having appointed SCOTUS justices who turn out to be not nearly as conservative as advertised — from Eisenhower’s appointment of Earl Warren and William Brennan, to Nixon’s appointment of Lewis Powell and Harry Blackmun, to Ford’s appointment of John Paul Stevens, to Reagan’s appointment of Sandra Day O’Connor and Anthony Kennedy, to Poppy Bush’s appointment of David Souter, to Dubya’s attempt to appoint Harriet Miers.

      I think conservatives are thrilled with having a group like the Federalist Society act as judicial gatekeepers, and I expect it to become the new normal whenever we have a Republican president. Indeed, I expect any candidate seeking the GOP presidential nomination will henceforth be required to take a pledge to follow a similar procedure in order to be taken seriously as a Republican candidate.

      1. It remains to be seen how conservative or GOP-friendly some of these new judges turn out to be. There is hope that they are constrained by their perceived need to follow the rule of law. I suspect that this more than anything quelchs the “party or bust” attitude that might otherwise reign. Not having to worry about re-election campaigns also helps.

        1. In this regard, I was proud to see Chief Justice John Roberts issue a statement today upbraiding Donald Trump for attacking “Obama judges” on the Ninth Circuit. Trump, being Trump, is on a twitter rampage over it.

    1. I wonder this too. Is it because the subject agreed with the procedure (so not assault) and that it wasn’t done under false pretenses (all parties understood it as a necessary religious procedure)?

      1. I don’t think consent can be an issue since the victims were children at the time, and thus not able to give informed consent. Not to mention the fact that the idea of giving informed consent to something that results in irreversible injury might be considered, er, problematic.

  8. We are a nation of laws. Sometimes the outcome is not what we would like but the despicable get the benefit of law just like the rest of us. I totally agree with the decision and hope they get charged with child abuse and assault.

  9. Well the first thing that comes to my mind is consent.Who is doing this to these children?I take it these people are Muslims.I cannot believe this is being done in America.

  10. I have to agree with the ruling. I see nothing related to interstate commerce here, even though the government has successfully overreached in the past to claim various things involve interstate commerce when they don’t (like that farmer growing wheat solely for consumption on his own farm).

    It’s good that the state now has a law against it, so girls will be protected moving forward.

    I do hope they pass a law barring male circumcision as well. Not everything called “female genital mutilation” is infibulation or clitoral removal. Removing the clitoral hood, for example – a popular form of “female circumcision” – is exactly analogous and homologous to removing the foreskin, so if it’s horrible then male circumcision is too.

      1. As Roscoe Filburn said “How could it be interstate commerce [when] it’s all on one farm in one state? I’m not buying it, I’m not selling it, there’s no commerce involved. It’s not commerce and it’s intrastate.”

        So other than the fact that was not commerce and not interstate, it sounds exactly like interstate commerce.

        1. As with the pot in Gonzales v. Raich, Filburn’s wheat was fungible, thus impossible to discern whether those particular grains ended up on the local or interstate market. Further, Filburn’s production did have an effect on the overall, national wheat market.

          FTR, nobody but you and the late Roscoe disagree with the ruling.

  11. I’m not a lawyer, so I’m not sure if the government can make FGM against federal law using any rationale.

    A legislature can come up with pretty much any rationale for its laws. If legally challenged, the state would need to show a “compelling interest” behind the legislation.

  12. It seems hypocritical for Judge Friedman to argue that blocking access to abortion clinics falls under Commerce, but a genital mutilation clinic accepting interstate business does not.

  13. I have to wonder whether anything that inhibits sexual drive could possibly be a bad thing for America in the long term merely because young adults automatically find the prospect unsavory.

    Less sex in America…how could it possibly be BAD?

    Or maybe I forgot that unplanned pregnancies and increase in current population numbers can be a good thing?

    or maybe you work at a condom factory, and therefore, the more sex America engages in, the more secure your long-term employment?

    1. The US birthrate has been steadily declining for years, to the point where, if it continues, it will have severe negative consequences. We’re no longer even at replacement level.

      Plummeting birth rates are bad for any nation.

    2. “I have to wonder whether anything that inhibits sexual drive could possibly be a bad thing …”

      I have to wonder about anyone who wonders about cutting off another group of people, let alone an entire generation, from one of life’s exquisite pleasures.

      But then, maybe your just pulling our … legs?

    1. Were the American pro-life movement ever to achieve its ultimate goal of amending the US constitution to include a “personhood” provision for the unborn (a goal it is reticent to discuss when seeking the votes of moderates), this would become the iron law of the land in all 50 states.

      Abortion would perforce be “murder,” punishable by death in some jurisdictions, no doubt. That’s how much they love life.

  14. This unfortunate turn is just another case showing that civilized societies have no mechanisms to resist barbarism, other than keeping out people who believer and practise it.

    1. Here in the US of A, we have faith in assimilation — more faith than we do in the xenophobes like Trump’s band of white nationalists who want to exclude foreigners (wherever they’re from).

      We also believe we have the ultimate weapon to resist barbarism — the strength of a better idea, and the freedom to express it unreservedly.

  15. Obligatory when this subject comes up:

    There are versions of FGM that are more severe than male circumcision/genital mutilation and there are versions that are less severe. ALL arguments that have been made for MGM; hygiene, aesthetics, sexual drive, religion etc., have also been made for FGM.

  16. When a form of violence is practiced only against girls, a federal law banning it seems fair game under the 14th Amendment. As far as I (not a lawyer) can see.

  17. Just a small correction to one of the implications of this article. While FGM is more widely practised by Muslims, it remains very widespread in the Christian Orthodox communities in Ethiopia (where I live) and Eritrea, despite being illegal in the former and a target of eradication efforts in the latter. in any case, the fact that it is not a solely Muslim practice suggests that its origins are cultural rather than religious.

    On the other hand, to the best of my knowledge there is no mention in Judaism or Christianity of the necessity of female circumcision, whereas – if wikiislam is to be believed – the Muslim practice is dictated by the hadith, though not by the Quran itself.

    My personal view, for what it’s worth, is that mutilation of both boys and girls for non-medical reasons should be illegal and not even subject to parental consent. That goes for the US, where I believe that the widespread practice of nonreligious male circumcision dates back to a 19th-century belief that it prevents masturbation (which is self-evidently neither desirable nor true).

  18. this paragraph in this US govt site, seems to support the idea that the fed believes that it did have the authority to make FGM illegal.

    What Are the Criminal Consequences of Performing or Assisting in FGM/C?

    It is against U.S. law to perform FGM/C on a girl under the age of 18, or to send or attempt to send her outside the United States so FGM/C can be performed. Violation of the law is punishable by up to 5 years in prison, fines, or both. There is no exception for performing FGM/C because of tradition or culture. Cutting and other procedures that injure the female genital organs of a girl under 18 are prohibited under U.S. law.

  19. If a christian couple beats the devil out of their child with enough ferocity to cause physical damage which is still less severe than the damage FGM does, those christians face prosecution for assault causing bodily harm in pretty much every state, don’t they? Why not prosecute this case as conspiracy to commit assault causing bodily harm on children? WTF is wrong with these people?

    1. I like the choice of red used. Blood red.

      Very good work throughout.
      Artists are fortunate to be able to express themselves so provocatively.

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