A federal judge in Detroit held that Congress has no authority to ban female genital mutilation. The decision resulted in the dismissal of charges regarding the procedure against eight individuals. U.S. District Judge Bernard Friedman ruled Congress did not have authority under the commerce clause to ban female genital mutilation because the procedure does not affect interstate commerce. Several news media reported the decision including the Detroit Free Press, the Detroit News and the Associated Press.
Understanding the Procedure
Common in some parts of Africa, Asia, and the Middle East, female genital mutilation is a procedure that is said to be part of a religious custom for girls in a Muslim sect known as the Dawoodi Bohra. The purpose of female genital mutilation is to ensure girls remain virgins until marriage. The procedure is also purposed to discourage adultery, according to reports. The federal ban on female genital mutilation was born in 1996 and backed by then Senator Harry Reid of Nevada.
The Arguments for the Federal Ban
Two arguments were put forth by the government in support of the federal ban’s constitutionality. The first argument was that Congress has the power to pass the female genital mutilation ban under a treaty ratified by the Senate in 1992. The treaty, according to the government, calls on member countries to provide political and civil rights to men and women and also calls for protection of minors on a non-discriminatory basis. The court found no logical relationship between the treaty and the ban on female genital mutilation. Alternatively, even if the court did find a relationship between the two, it noted that federalism does not allow Congress to enact the ban.
The government’s second argument was that the commerce clause granted Congress authority to ban female genital mutilation. The court also rejected this argument, stating that the procedure could not be classified as an economic or commercial activity. Citing to a U.S. Supreme Court (SCOTUS) decision in United States v. Morrison, the court noted this procedure can not be distinguished from other gender-motivated crimes of violence, which the SCOTUS found not to be part of the interstate market.
The defendants in the case included two Michigan doctors, one who allegedly performed female genital mutilation procedures on nine girls and the other who allowed the procedures to take place in his clinic. Additionally, four mothers who took their daughters for the procedure were charged as well the wife of one of the doctors and a worker who assisted in the surgeries. The court left obstruction charges in place against the defendants, which can carry a prison sentence of up to 20 years. Other criminal charges against the defendants remained in place including conspiracy with intent to engage in illicit sexual conduct defined as the intentional touching of another under the age of 16 with the intent to abuse, degrade, or harass; this charge carries a maximum sentence of life in prison.
While Michigan is one of 27 states in the nation that have laws on the books banning female genital mutilation, its law was passed to later to apply to the case at hand.