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Tipsheet

Women's Activists Concerned Over Judge Ruling Female Genital Mutilation Ban 'Unconstitutional'

Women’s activists are frustrated after last week’s ruling by a federal judge in Michigan, which declared that a 22-year-old federal ban on female genital mutilation (FGM) is unconstitutional.

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The decision came in response to a case in which Dr. Jumana Nagarwala, along with seven other people, was charged with mutilating the genitals of nine girls from Michigan, Minnesota, and Illinois between the years of 2015 and 2017. Authorities alleged that the girls were roughly 7 years old at the time of the procedure.

According to prosecutors, Nagarwala ultimately headed up a conspiracy for over 12 years, which resulted in the procedure being performed on roughly 100 young girls.

Nagarwala claims she committed no crime, but instead was merely participating in a traditional Muslim religious custom common to the India-based Muslim sect of Dawoodi Bohra.

It is reportedly the first criminal case of its kind, nationwide.

Last Tuesday, US District Judge Bernard Friedman dismissed conspiracy and mutilation charges against each of the eight defendants, ruling that the 1996 federal law banning female genital mutilation was unconstitutional because Congress has no power to enforce such a law. Because the controversial procedure is not technically a commercial activity, reasoned the judge, it does not fall under the Commerce Clause.

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A spokesperson for the U.S. Attorney’s Office said, however, that officials are reviewing the judge’s decision, and may consider an appeal.

Meanwhile, women’s rights advocates are speaking out against the ruling, claiming that it’s an affront to the rights of American women.

“It’s a giant step backward in the protection of women’s and girls’ rights,” Shelby Quast, director of Equality Now, told the Detroit Free Press. “Especially when there is a global movement to eliminate this practice.”

The judge did make clear that individual states do have the authority to ban female genital mutilation. The practice is presently illegal in 27 states, but women’s rights activists like Quast worry that the remaining 23 states will become destination locations for FGM, as a result.

“Parents are aware of where there are laws against it and where there are not. And they will take advantage of that,” Quast said.

Michigan state Senator Rick Jones also voiced concern about last week’s ruling.

“I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will,” Jones said in a statement. “This is why it was so important for Michigan to act. We set a precedent that female genital mutilation will not be tolerated here … I hope other states will follow suit.”

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The Michigan case led state legislators to officially pass a state law banning female genital mutilation. Anyone performing or assisting in the procedure can face up to 15 years in prison. Nagarwala and the other seven individuals involved were prosecuted under the old federal law, however.

Defense attorney Shannon Smith, who represented Nagarwala, told the Free Press that she is “unbelievably happy” about last week’s ruling.

“The impact is huge,” Smith said. “It eliminates four defendants from the indictment, and it severely punctures major holes in the government’s case.”

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