A federal judge in Detroit has dropped nearly all charges against a doctor accused of performing female genital mutilation procedures on underage girls, in the first federal case targeting the controversial procedure.
Dr. Jumana Nagarwala, the lead defendant, was charged with committing female genital mutilation in violation of federal law at a clinic in Livonia, Michigan, plus conspiring to commit female genital mutilation, as well as aiding and abetting others. He was charged alongside Dr. Fakhruddin Attar, his wife, and five parents who subjected at least nine girls to the procedure, all of whom are residents of Michigan or Minnesota.
The term “female genital mutilation,” or FGM, refers to the non-medical practice where external genitalia, including the clitoris, is removed partially or entirely. Often carried out on underage girls, it’s common in many West African countries and parts of the Middle East and Asia, and it's done for a number of religious and cultural reasons. The United States is one of at least 44 countries that currently bans the practice.
Nagarwala still faces charges of conspiring to travel with intent to engage in illicit sexual conduct, and conspiring to obstruct an official proceeding.
District Court Judge Bernard Friedman’s ruling on Tuesday effectively overturns the federal government’s ban on female genital mutilation. In his opinion, Friedman, who was appointed to the bench by President Ronald Reagan, concluded that the way the federal law bans the practice is unconstitutional.
"Congress overstepped its bounds by legislating to prohibit [female genital mutilation]," Friedman wrote, adding he believes the issue falls under the purview of state law, not Congress.
But activists who work to end female genital mutilation say that the ruling is essentially a green light for the practice to continue. “In this day and age, for FGM to still occur – and a federal government can’t regulate this with a human rights violation – is very bizarre,” Yasmeen Hassan, executive director of Equality Now, an international women’s rights organization, told the Detroit Free Press. "This is not what I expected. It's so not what I expected."
“A federal judge (man) in the Detroit #FGM case has declared the Law protecting girls from #FGM to be unconstitutional,” wrote Nimco Ali, co-founder of Daughters of Eve, a nonprofit working to end female genital mutilation, on Twitter. “I have no words right now. No words at all.”
The Federal Prohibition of Female Genital Mutilation Act, passed in 1996, made it illegal to perform the procedure on minors for non-medical reasons. In addition, 24 states have laws banning the practice.
The case against Nagarwala, filed in April 2017, was the first time that a federal lawsuit had ever been brought under that 1996 law.
Friedman’s issue with the constitutionality of the law stemmed from the fact that it was written under law regulating commerce. He wrote that the law claims, “like child pornography and marijuana, an interstate market exists for FGM.”
In this instance, Friedman said, the government’s evidence that a market existed was by pointing to the nine alleged underage victims – all of whom were operated on by Nagarwala – who were brought to Michigan for the procedure from neighboring states.
“This is not a market but a small number of alleged victims,” Friedman wrote. “If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?”
Cover: In this April 21, 2017 file photo, FBI agents leave the office of Dr. Fakhruddin Attar at the Burhani Clinic in Livonia, Mich., after completing a search for documents. (Clarence Tabb Jr. /Detroit News via AP, File)