Judge Bernard Friedman Strikes Down Federal Law On Female Genital Mutilation

Judge Bernard Friedman Strikes Down Federal Law On Female Genital Mutilation

Judge Bernard Friedman Strikes Down Federal Law On Female Genital Mutilation

Is female genital mutilation (FGM) a Tenth Amendment issue or not? U.S. District Judge Bernard Friedman in Michigan has decided that it is, and has struck down a federal law outlawing the practice in the middle of a criminal case.

This is the trial of Dr. Jumana Nagarwala, Dr. Fakhuruddin Attar, his wife Farida Attar, and the parents involved in FGM after-hours at Dr. Attar’s Livonia, Michigan, medical office, outside of Detroit. This case was the first test of the federal FGM law. The defendants claimed the law was unconstitutional. And Judge Bernard Friedman agreed with them.

U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed 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, including Michigan, whose FGM law is stiffer than the federal statute, punishable by up to 15 years in prison, compared with five under federal law. Michigan’s FGM law was passed last year in the wake of the historic case and applies to both 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.

Gina Balaya, spokesperson for the U.S. Attorneys Office, said the government is reviewing the judge’s opinion and will make a determination whether or not to appeal at some point in the future.

Friedman’s ruling stems from a request by Dr. Jumana Nagarwala and her co-defendants to dismiss the genital mutilation charges, claiming the law they are 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.”

The defendants have argued that “Congress lacked authority to enact” the genital mutilation statute, “thus the female genital mutilation charges must be dismissed.” They also argue that they didn’t actually practice FGM, but rather performed a benign procedure involving no cutting.


As you can well imagine, anti-FGM activists are stunned.

For FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Massachusetts, to ban FGM worldwide, Friedman’s ruling was a punch to the gut.

“Oh my God, this is crazy,” said Taher, stressing she fears the ruling will put more young women in harm’s way. “Unfortunately, this is going to embolden those who believe that this must be continued … they’ll feel that this is permission, that it’s OK to do this.”

Taher, who, at 7, was subjected to the same type of religious cutting procedure that’s at issue in the Michigan case, said she doesn’t expect laws alone to end FGM. But they are needed, she stressed.

“This is a violation of one person’s human rights. It’s a form of gender violence. … This is cultural violence,” 35-year-old Taher said.

Yasmeen Hassan, executive global director for Equality Now, an international women’s rights organization, agreed, saying the ruling sends a disturbing message to women and girls.

“It says you are not important,” Hassan said, calling the ruling a “federal blessing” for FGM.

“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,” she said. “This is not what I expected. It’s so not what I expected.”

Hassan added: “I don’t think it’s possible for the federal government not to appeal this case. My feeling is that it will go all the way to the Supreme Court.”

So, is the judge correct? Is FGM a states’ rights issue to be covered by the Tenth Amendment?

Well, then what is abortion, then?

If FGM laws are to be covered state-by-state, then why is there a federal abortion law that activists scream about every single time a new justice is named to the Supreme Court? Judge Bernard Friedman may have just handed the Supreme Court the case that could overturn Roe v. Wade – and it has absolutely NOTHING to do with abortion, and EVERYTHING to do with the limits on the power of the federal government. Or, this case ends up in front of the Supreme Court and confirms that the FGM law is constitutional, and these doctors who are trying to plead “religious freedom” get slapped with these charges again. As it currently stands, charges against Nagarwala and the Attars still exist.

Nagarwala, meanwhile, is still facing a conspiracy charge and an obstruction count that could send her to prison for 20 years, along with the Attars. If convicted of conspiracy, Nagarwala faces up to 30 years in prison.

The case is set to go to trial in April 2019.

But now the potential legal appeals process of the FGM law has much broader ramifications. Well done, Judge Bernard Friedman. I’m sure that this wasn’t your intent, but you may have just created the perfect Tenth Amendment storm that may hold the most serious challenge to Roe v. Wade in decades.

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7 Comments
  • GWB says:

    The defendants in this case can’t be retroactively charged under the new law.
    Actually, they shouldn’t be charged in ANY case under a new law. The Constitution specifically prohibits ex post facto laws.

    So, is the judge correct?
    Sadly, for the victims in this case, yes.

    Well, then what is abortion, then?
    Exactly the same. Except national laws on abortion apply to things like federal funding, military bases, and the like – where the national gov’t actually has jurisdiction.
    a federal abortion law
    Well, since the article aims at Roe v Wade it’s not talking about a federal law AT ALL. That’s a Supreme Court ruling that 1) overstepped their bounds, 2) was badly reasoned (where reason applies at all within it), and 3) was extremely poorly written.

    still facing a conspiracy charge and an obstruction count
    Going to be difficult to convict for conspiracy when there was (according to the ruling) no crime committed. Should be even tougher for an obstruction charge. (But, then again, Martha Stewart.)

    I’m sure that this wasn’t your intent
    Or, maybe it was. This man was appointed by Ronald Reagan.

    Roe v Wade was awful on two levels: it was outside the jurisdiction of the court which ultimately ruled on it and it was extremely wrong on its science and its morality. I would love to see it struck down on both of those. Then everyone can go about “fixing” the issue in their own state within the political realm – as it should be.

    As to the FGM, I have to ask, “Why not charge under malpractice and child abuse statutes?” Do we really need a law that says it’s illegal to pull out your children’s fingernails?

  • Bill589 says:

    I like the idea that if anyone wants to come and live in America, they should come here to be an American.
    Americans do not mutilate their children and their lives.
    This is evil.

  • Acksiom says:

    >Americans do not mutilate their children and their lives.

    Except, of course, for how they do, i.e. circumcision.

    And before people start posting denialist nonsense — yes, circumcision really is mutilation, because it would be mutilation if done to any other normal, healthy, functional body part.

    That’s the end of all arguments about the practice, right there. That’s it and that’s all. The fact that the male prepuce possesses the same basic, inherent, fundamental value as any other normal, healthy, functional body part is all that’s needed to settle the issue,

    The actual peer-reviewed research proves it — http://www.cirp.org/library/anatomy/cold-taylor/ — and the male prepuce is not deprived of that basic, inherent, fundamental value because of religious beliefs or parental authority or the mere possibility of merely potential medical benefits that are directly disputed by infection and disease incidence rates outside the USA.

    • GWB says:

      No, circumcision is NOT mutilation. It isn’t even in the same league as FGM.
      Egad, you help to kill any action against FGM with that sort of stupidity.
      *smdh*

      • Acksiom says:

        As I said, denialist nonsense. Again, it would be mutilation if done to any other normal, healthy, functional human body part, and the male prepuce is not uniquely excluded from that.

        As to FGM comparisons, the least forms of FGM, such as minor excision or just mere symbolic nicking, are even less comparable to the most extreme forms, so by your reasoning, they would be even less in the same league, and that would help kill any action against FGM even more so. It doesn’t seem to have stopped the UN or the many organizations around the world solely concerned with female genital mutilation from categorizing them together and opposing all of them.

        Furthermore, the closest comparison we can make between the consequences and losses from routine and ritual male prepucectomy as commonly performed on male to the female body is the excision of most to all of the clitoral hood and the inner and outer labia, and also the stripping out of the frontmost vaginal skin, with the two resulting raw edges being clamped against each other under thousands of pounds of force until they roughly and randomly seal together.

        That’s the best approximation we can make of what male prepucectomy would be like for females based on current knowledge of what circumcision does to males.

        Finally, the general acceptance of routine and ritual male genital mutilation is a much more likely driver for the acceptance of routine and ritual female genital mutilation than its proper identification as mutilation is. Because with only one known exception, and that a recent change in the past generation (the african Luo tribe), female genital mutilation is only practiced where male genital mutilation is practiced, while the reverse is not true. In fact, as of the last available estimates of which I know, the ratio is about 1:7, i.e. one female genital mutilation victim to 7 male genital mutilation victims worldwide.

        Wherever they cut the girls, they also cut the boys. The reverse is not true. Male genital mutilation is the gateway to female genital mutilation. The wider and more open the gateway to male genital mutilation, the more female genital mutilation there will be.

        The stupidity is in denying that circumcision is male genital mutilation, and it’s stupidity on par with believing that the earth is flat or that the moon landings were faked.

  • Jordan says:

    This is sick but so abortion is even worse. I hope this does lead to an over turn of roevwade so we will stop senselessly murdering the innocent children, the most vulnerable group of all. Women have cried for decades over not having a voice and not having rights, yet they want to deny a voice and rights to those poor children who have don’t even have a chance to speak for themselves. It’s the most disgusting practice in the history of this world.

  • John says:

    No one should be cut, boys or girls.

    There is only one group that cuts little girls. Muslums.

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