Court Finds Female Genital Mutilation Ban Unconstitutional

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 20, 2018

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A federal judge in Michigan has ruled that a federal law outlawing female genital mutilation (FGM, also known as “female circumcision”) is unconstitutional.

FGM is an ancient practice that still persists today. More than 200 million girls and women in 30 countries (including the US) have had all or part of their external genitalia removed.

As the World Health Organization notes,

FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is nearly always carried out on minors and is a violation of the rights of children. The practice also violates a person’s rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death.

Although the practice is still wide-spread, it’s declining. FGM is banned or criminalized in at least 59 counties and is illegal under several international treaties.

Ostracized

The New York Times reported that rates of FGM have fallen 14% in the past 30 years. However, girls who refuse to have the procedure performed are still ostracized in some communities.

The Centers for Disease Control (CDC) estimate that over half a million girls and women in the United States were either victims of FGM or at risk for FGM. One third of the victims and potential victims are under 18.

The US law forbidding the practice was passed in 1996. As the New York Times reported, it was only recently challenged in a case involving two doctors and four parents.

The Times reported that “two doctors and a clinic manager from a small Shiite Muslim sect — were believed to have arranged cutting for up to 100 girls since 2005.”

Criminal Complaint

A criminal complaint was filed against them. It’s believed to be the first filed under the 1996 law.

Michigan’s Child Protective Services also tried to terminate custodial rights of several parents whose daughters are believed to have undergone FGM.

Local Criminal Activity

The judge in the criminal case ruled that Congress didn’t have the authority to pass the law against FGM, saying that regulating FGM was “local criminal activity” and thus a state responsibility.

Twenty-seven states have their own laws outlawing FGM.

Michigan passed a law against FGM in 2017, but it’s not retroactive and the defendants in the case could not be tried under state law for acts that predated the law.

According to the Times,

Legal experts said Congress could supersede the law with one that could pass muster, particularly by tying the cutting practice to aspects of interstate commerce, because Congress is allowed to make laws enforcing the Commerce Clause of the Constitution.

According to The Guardian,

Campaigners [against FGM] said the ruling dealt a heavy blow to the rights of women and girls and could effectively turn the 23 US states that do not have anti-FGM laws into “destination states” for cutting.

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