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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