In a Michigan case involving members of a small Muslim sect, the court found that only states, not federal prosecutors, could bring charges.<\/b>
\nMore than two decades ago, Congress adopted a sweeping law that outlawed female genital mutilation, an ancient practice that 200 million women and girls around the world have undergone. But a federal court considering the first legal challenge to the statute found the law unconstitutional on Tuesday, greatly diminishing the chances of it being used by federal prosecutors around the country.
A federal judge in Michigan issued the ruling in a case that involved two doctors and four parents, among others, who had been criminally charged last year with participating in or enabling the ritual genital cutting of girls. Their families belong to a small Shiite Muslim sect, the Dawoodi Bohra, that is originally from western India.
The case, the first to be brought under the 1996 law that criminalized female genital mutilation, has been closely followed by human rights advocates and communities where cutting is still practiced and whose members have moved in growing numbers to the United States and other western countries.
On Tuesday, Judge Bernard Friedman of the United States District Court for the Eastern District of Michigan ruled that Congress did not have the authority to pass the law against female genital mutilation and he dismissed key charges filed against the doctors and removed four of the eight defendants from the case.
\u201cAs laudable as the prohibition of a particular type of abuse of girls may be,\u201d he wrote, prosecutors failed to show that the federal government had the authority to bring the charges, and he noted that regulating practices like this is essentially a state responsibility. He rejected arguments that the law allowed for such a federal prosecution because Congress has a right to regulate commerce or health care or can enact laws to support international treaties that the United States has signed.
\u201cFederalism concerns deprive Congress of the power to enact this statute,\u201d Judge Friedman wrote. He added in the 28-page ruling, \u201cCongress overstepped its bounds by legislating to prohibit FGM\u201d because \u201cFGM is a \u2018local criminal activity\u2019 which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.\u201d
Gina Balaya, a spokeswoman for United States Attorney Matthew Schneider in Detroit, said, \u201cWe are reviewing the Judge\u2019s ruling and will make a determination on whether or not to appeal.\u201d
Lawyers for the defendants have argued that the Dawoodi Bohra practice is a protected religious procedure and is not mutilation but rather a \u201critual nick\u201d that doesn\u2019t remove the clitoris or labia as do some forms of cutting.
Peter Henning, a law professor at Wayne State University and former federal prosecutor, said the judge\u2019s ruling appeared to be solid and that, while 27 states have their own laws criminalizing the practice, other states would need to pass laws or use existing assault or abuse laws if they wanted to bring charges.
\u201cGiven how this statute is written I think he\u2019s correct,\u201d Professor Henning said. \u201cI hate to say Congress whiffed, but they whiffed on this law. There isn\u2019t a federal police power, so they can\u2019t just adopt anything they want. It has to be located in one of Congress\u2019s express powers and this wasn\u2019t.\u201d
Advocates fighting to end female genital cutting were dismayed by the ruling. Shelby Quast said her group, Equality Now, is urging federal prosecutors to appeal the decision. \u201cWe are confident that Congress had the authority to pass this FGM law,\u201d she said.
Mariya Taher, a co-founder of Sahiyo, a group representing members of the Dawoodi Bohra sect who oppose cutting, said she appreciated that the ruling was not condoning female genital mutilation and that states still have options to bring cases. But she added that she is concerned about the message those who believe in cutting might draw from the decision.
\u201cIs this something that proponents will use as a reason to say that \u2018what we do isn\u2019t harmful,\u2019 almost giving them permission to do this?\u201d she wondered. \u201cThe U. S. is looked to as a leader, so this could definitely have repercussions globally.\u201d
In the Michigan case, Dr. Jumana Nagarwala, an emergency medicine physician and a member of the Dawoodi Bohra sect, is accused of cutting the genitals of nine girls. Dr. Fakhruddin Attar, an internist, is accused of letting Dr. Nagarwala use his now-closed Burhani Medical Clinic in Livonia, a Detroit suburb. His wife, Farida Attar, the clinic\u2019s office manager, and another woman, Tahera Shafiq, were accused of assisting the doctors.
Judge Friedman dismissed charges against Ms. Shafiq, as well as mothers of two girls from Minnesota and one girl from Michigan. Dr. Nagarwala, the Attars and a fourth mother remain charged with conspiracy to obstruct an official proceeding. Dr. Nagarwala is also charged with conspiracy to travel with intent to engage in illicit sexual conduct.
Molly Blythe, a lawyer for Dr. Nagarwala, said Wednesday that while pleased with the ruling, Dr. Nagarwala remains under home confinement and still has to face the other charges, which could carry a sentence of years in federal prison.
Legal experts said Congress could supersede the law with one that could pass muster, particularly by tying the cutting practice to aspects of interstate commerce, because Congress is allowed to make laws enforcing the Commerce Clause of the Constitution.
\u201cThere are ways that Congress could write a different statute that would be more closely connected to conduct that has an effect on interstate commerce,\u201d said Michael Rosman, general counsel for the Center for Individual Rights, although he said he believed such a law would still be vulnerable to claims it violated equal protection or religious freedom.
Federal prosecutors argued that the law was linked to congressional authority to enforce the commerce clause, but Judge Friedman rejected that.
\u201cIf there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?\u201d he wrote, adding \u201cFGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.\u201d
The judge also disputed prosecutors\u2019 argument that the law fell under a constitutional clause that allows Congress to enforce treaties, specifically the International Covenant on Civil and Political Rights. Judge Friedman said the covenant\u2019s language was too general, calling for nondiscrimination and \u201ccivil and political rights.\u201d It is not \u201crationally related to the FGM statute, which prohibits the mutilation of girls\u2019 genitalia.\u201d<\/p>\n

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