A judge for the US District Court for the Eastern District of Michigan on Tuesday dismissed the case against Jumana Nagarwala, a doctor accused of performing female genital mutilation on at least 9 girls, finding the federal ban unconstitutional.
The government brought this case against the doctor and seven other defendants including three additional medical staff who assisted in the procedure and four mothers of girls who underwent the procedure. The government claims that the eight defendants committed female genital mutilation in violation 18 USC § 116, which protects victims from female genital mutilation even as a religious practice. The government alleges that the victims came from Illinois, Michigan and Minnesota.
The defendants argued that Congress passed the female genital mutilation statute in violation of the Constitution while the government argued that Congress has the right to pass legislation for the enforcement of treaties. Specifically, the government argued that the female genital mutilation statute was passed in adherence to the UN International Covenant on Civil and Political Rights, which the Senate ratified in 1992. The government argued this statute was passed for the equal protection of men and women under Article 3 and the protection of minors under Article 24 of the treaty.
The court was not persuaded by the government’s arguments, finding that, “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.” The court dismissed the charges against the defendants, finding that while the practice is deplorable and potentially criminal, the right to legislate criminal statutes belongs to the states unless the government has a specific claim to legislate like interstate commerce.
The US attorney’s office is reviewing this opinion to determine whether they will seek an appeal.