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!