Bernard Friedman, U.S. District Judge for the Eastern District of Michigan, has declared the female genital mutilation law unconstitutional, thereby dismissing the key charges against Indian American Doctor, Jumana Nagarwala and six others, the Detroit Free Press reported. The judge said it is a state subject and Congress lacked authority to enact laws on this. Congress passed the law 22 years ago.
He has also dropped the charges against Dr. Nagarwala, Dr. Dr. Fakhruddin Attar, who let Nagarwala use his suburban Detroit clinic; Attar’s wife, who assisted in the procedure; and five others.
The judge dismissed charges against three mothers, including two Minnesota women whom prosecutors said tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls' weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure.
Though the charges have been dropped, the doctors will continue to face lengthy prison terms on conspiracy charges in the genital mutilation of nine girls, according to media reports.
Judge Friedman said that ‘as despicable as this practice may be,’ Congress did not have the authority and that FGM is for the states to regulate. FGM is banned in more than 30 countries, though the U.S. statute had never been tested before this case.
As laudable as the prohibition of a particular type of abuse of girls may be ... federalism concerns deprive Congress of the power to enact this statute," Friedman wrote in his 28-page opinion, noting: ‘Congress overstepped its bounds by legislating to prohibit FGM ... FGM is a 'local criminal activity' which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.’
Currently, 27 states have laws that criminalize female genital mutilation. After the Nagarwala case, Michigan too passed a law which stipulates 15 years in prison, federal law allows only a five year jail term.
Michigan's FGM law applies to doctors who conduct the procedure, and parents who transport a child to have it done. The defendants in this case can't be retroactively charged under the new law.
Friedman's ruling stems from a request by Dr. Jumana Nagarwala and her codefendants to dismiss the genital mutilation charges, claiming the law they were being prosecuted under is unconstitutional.
The defendants are all members of a small Indian Muslim sect known as the Dawoodi Bohra, which has a mosque in Farmington Hills. The sect practices female circumcision and believes it is a religious rite of passage that involves only a minor "nick."
They also argue that they didn't actually practice FGM, but rather performed a benign procedure involving no cutting.
‘Oh my God, we won!,’ declared Shannon Smith, Nagarwala's lawyer, who expects the government to appeal. ‘But we are confident we will win even if appealed.’
Smith has maintained all along that her client did not engage in FGM.
‘Dr. Nagarwala is just a wonderful human being. She was always known as a doctor with an excellent reputation. The whole community was shocked when this happened. She's always been known to be a stellar doctor, mother, person.’
For FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Massachusetts, to ban FGM worldwide, condemned the ruling saying that people may take it as permission to practice this abominable thing.
