Federal Female Genital Mutilation Law Ruled Unconstitutional

A federal judge has found the practice outside the scope of Congress' authority.

CNN (“Charges dropped in first federal genital mutilation case in US“):

A Detroit judge has dropped nearly all the charges against a Michigan doctor accused of performing female genital mutilation on at least nine underage girls, according to court documents.

In a decision filed Tuesday, Judge Bernard Friedman ruled that the federal female genital mutilation law is unconstitutional and that Congress did not have the right to criminalize the practice, and therefore he dismissed six of eight charges in the United States’ first federal case involving the procedure.
“Congress overstepped its bounds by legislating to prohibit [female genital mutilation],” Friedman wrote, calling it a “local criminal activity” for the states to regulate, not Congress.

Dr. Jumana Nagarwala is the lead defendant in the case. While the charges of conspiring to commit and committing female genital mutilation, as well as aiding and abetting others in doing so, have been dropped, Nagarwala still faces charges of conspiring to travel with intent to engage in illicit sexual conduct and conspiring to obstruct an official proceeding. She was charged alongside Dr. Fakhruddin Attar, his wife, Farida Attar, and five other residents of Michigan and Minnesota.

[…]

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.

While he’s described as a “Detroit judge” in the report, Friedman is a Senior United States District Judge of the United States District Court for the Eastern District of Michigan, not a local judge. And, while I dislike the result here—as, quite obviously, does Friedman—I think he’s right.

When I first saw the news via Twitter, I was afraid that the ruling centered on the Free Exercise Clause. But the ruling here isn’t that female genital mutilation is a protected freedom if performed for religious reasons. Friedman is simply arguing that this is outside the scope of Congress’ power to regulate because there is no interstate component.

FILED UNDER: Crime, Law and the Courts, U.S. Constitution
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Yea, I’ve got to agree. This is a matter for the states, not the Federal Government.

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  2. MarkedMan says:

    Although the way it is presented here seems to make sense, how does this ruling pertain to things like federal murder charges, hate crimes, RICO prosecution (at least those that cover only actions in one state) and so forth? Aren’t there many federal criminal laws that don’t directly affect interstate commerce? (I’m asking, not arguing.)

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  3. @MarkedMan:

    As a general rule, Federal laws against murder only apply if the murder occurs on Federal property or if the target is a Federal employee. Civil rights charges require evidence showing there was an intent to deprive someone of their civil rights. RICO is more complicated but still generally requires some interstate component such as wire fraud, mail fraud, or bank fraud.

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  4. mattbernius says:

    @MarkedMan:
    At least in terms of Hate Crimes, everything ties back to the Constitution (in particular the civil rights Amendments).

    And it’s fair to say that a number of originalists don’t think that Hate Crimes should be something that can be federally prosecuted.

  5. MarkedMan says:

    @Doug Mataconis: The fact that murder is generally a state crime clarifies things. One more question that might be relevant: is child pornography also a state crime if kept within state borders?

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  6. Franklin says:

    IANAL, but my reaction to the headline was shock that this was some sort of free exercise of religion. Thankfully it’s a bit more logical, although I hadn’t realized this was currently a federal case.

    So the next question is whether Michigan has appropriate charges lined up here and when will they get the chance to press them?

  7. @MarkedMan:

    Generally speaking yes but since it is typically traded online that also gives the Feds jurisdiction if they want to take it

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  8. PJ says:

    FGM should be banned and then MGM should be banned too.

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  9. Raoul says:

    Is the argument that the federal government cannot banned human rights abuses in country? I would say that thought runs afoul the constitution. Let’s be clear about what FGM is (which by the way is far different than male circumsion): it is a barbaric ritual of the removal of the clitoris on prepubescent girls so the can they can never enjoy sex due to paternalistic concerns which is then justified by “religious” reasons. So many fundamental rights are being violated that yes one can proscribe federal laws against it- no idea what JJ and especially DM are thinking in agreeing with the ruling.

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  10. mattbernius says:

    @MarkedMan & @Doug Mataconis:
    Correct me if I’m wrong, but isn’t the federal Child Pornography crime *distribution* (or intent to distribute), not possession?

  11. mattbernius says:

    @Raoul:

    no idea what JJ and especially DM are thinking in agreeing with the ruling.

    They are beleiving in an ordered rule of law versus feelings.

    Roper: So now you’d give the Devil benefit of law!
    More: Yes. What would you do? Cut a great road through the law to get after the Devil?
    Roper: I’d cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

    There is nothing in this ruling that validates FGM. It simply states that it cannot be regulated by Congress based on an interstate argument.

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  12. Raoul says:

    @mattbernius: I beg to differ- it is my estimation that the constitution and its amendments (Article 2, 1st Amendment, 14 Amendment, etc.) allow for federal intervention when state laws are lacking for the simple reason that the lack of state laws would prevent the free exercise of religion and the deprivation liberty without due process which is what we have here.

  13. PJ says:

    @Raoul:
    And MGM was pushed as a way to deter masturbation.

  14. mattbernius says:

    @Raoul:
    Not to be pedantic, but what constitutional rights in Article 2, the 1st and 14th amendment are being infringed on here? And I’m not sure how you are using “deprivation of liberty” here (it doesn’t seem in keeping with the usual definition of it).

    You need to connect more dots on the argument you are trying to advance.

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  15. Raoul says:

    Circumcision is very different than FGM and can be defended by health and religious standards; but its broad applicability is suspect and certainly debatable but is is not FGM- its impact is by and large minimal- a constitutional paper on FGM would be interesting and this is not the forum to cite precedents and look at historical records though Civil Rights law would be a good guide. On the 1st Amendment- I dare say permanent compulsory religious practice affecting the enjoyment of sex is a violation of the free exercise clause and yes why is this not deprivation of liberty because that is exactly what is. More to the point- this is an example, of many, where literalism fails simply because so many situations were not foreseen-though being a Constitutional textist does not provide any guidance – the Constitution was never meant to be rigid schackle and there is plenty there to allow for common sense applications.

  16. mattbernius says:

    @Raoul:

    On the 1st Amendment- I dare say permanent compulsory religious practice affecting the enjoyment of sex is a violation of the free exercise clause and yes why is this not deprivation of liberty because that is exactly what is.

    That’s a novel line of reasoning… but I really don’t think it’s backed up by any sort of actual precedent. And without precedent, in the words of my ascended Con Law prof “son, that dog don’t hunt.”

    More to the point- this is an example, of many, where literalism fails simply because so many situations were not foreseen-though being a Constitutional textist does not provide any guidance – the Constitution was never meant to be rigid schackle and there is plenty there to allow for common sense applications.

    I’m not a rigid literalist by any means. Admittedly IANAL (though I hang out and work with them on the regs), but the types of jumps I’m seeing in your line of thinking simply don’t follow good legal thought (which by its nature tends to be conservative and based in precedent).

    Beyond that, this really seems a clear cut place where our system places responsibility on the states to legislate.

  17. Lounsbury says:

    @Raoul:
    All that needs to be done is to pass state level laws (or even simpler one supposes, modify existing to ensure existing clearly cover in an effective fashion).

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  18. PJ says:

    @Raoul:

    Circumcision is very different than FGM and can be defended by health and religious standards

    Religious standards? Less than 3% of the population are either Jewish or Muslim.
    Health standards? The benefits of MGM are almost non existent. Having the procedure done at a later time when the person can give consent to having his body mutilated erases the, again, almost non existent benefit of having it done at birth.

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  19. Andre Kenji de Sousa says:

    @Raoul:

    Circumcision is very different than FGM and can be defended by health and religious standards; but its broad applicability is suspect and certainly debatable but is is not FGM- its impact is by and large minimal-

    As a Male that was not circumcised I can say that I have doubts about it. Like, being better than FGM is a pretty low bar, but the foreskin is a pretty sensitive area, to the point that I can’t masturbate if I’m not touching the foreskin.

    Besides that you can’t use anesthesia with a infant child so that he won’t feel pain from being cut.

    That’s a delicate subject because you may be using the same arguments as antisemites/ Islamaphobes, but the foreskin is a pretty sensitive area. It should be kept there.

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  20. dennis says:

    James makes a point of law, and the entire conversation devolves into … foreskins. Geezus. Humans

    Happy Thanksgiving, everyone! .

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  21. grumpy realist says:

    This is just saying that “nope, this is something that needs to be regulated by the states, not the feds. Get cracking, everyone.”

    (Sort of like a few SCOTUS patent law decisions. Not so much that “no this can’t be regulated” but “hey, Congress, get cracking. This is in YOUR ballpark, not ours.”)