(Reuters) – A federal judge in Detroit on Tuesday declared unconstitutional a U.S. law banning female genital mutilation, and also dismissed several charges against two doctors and others in the first U.S. criminal case of its kind.
U.S. District Judge Bernard Friedman said Congress lacked authority under the Commerce Clause to adopt the 1996 law, and that the power to outlaw female genital mutilation, or FGM, belonged to individual states.
“As despicable as this practice may be, it is essentially a criminal assault,” Friedman wrote. “FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.”
Gina Balaya, a spokeswoman for U.S. Attorney Matthew Schneider in Detroit, said that office would review the decision before deciding whether to appeal.
The decision removed the main charges against Jumana Nagarwala, a doctor who performed the procedure on nine girls from Michigan, Illinois and Minnesota at another doctor’s clinic in the Detroit suburb of Livonia.
FGM is a religious custom performed on girls from her Muslim sect, the Dawoodi Bohra.
Four of the eight defendants were dismissed from the case, including three of the four mothers accused of subjecting their daughters to FGM.
The government said one girl, age 7, had told investigators that she and another girl had been taken to Detroit for what they thought was a “special girls’ trip,” and was told not to discuss the FGM procedure after it was completed.
Molly Blythe, a lawyer for Nagarwala, said in an email: “We are very excited about today’s ruling, although the victory is bittersweet given we fully anticipated our client to be vindicated at trial on those charges.”
FGM typically involves the partial or total removal of the clitoris.
It is a common practice in many northern and central African countries including Egypt, Ethiopia, Somalia and Sudan, but several international treaties forbid it.
Twenty-seven U.S. states also ban the procedure, according to civil rights groups. Michigan joined the list last year.
The World Health Organization estimates that more than 200 million girls and women alive today have undergone FGM.
Nagarwala pleaded not guilty last month to the two remaining charges she faces. Those charges are obstructing an official proceeding, and conspiracy to travel with intent to engage in illicit sexual conduct.
A GAO report says female genital mutilation are “procedures that involve partial or total removal of the external female genitalia, or other harm to the female genitals for non-medical reasons.” Partially or totally cutting away the clitoris is an example. There are no health benefits, says the World Health Organization(WHO), only harm. Among other factors, WHO says “FGM is often motivated by beliefs about what is considered acceptable sexual behavior. It aims to ensure premarital virginity and marital fidelity. FGM is in many communities believed to reduce a woman’s libido and therefore believed to help her resist extramarital sexual acts.”
Female genital mutilation is rooted in the cultures of some African countries and elsewhere, including Indonesia, Colombia and India.
The organization Safe Hands for Girls aims to create awareness about FGM and its harmful effects to help in the fight to eliminate it, and to provide support to survivors of the practice. We will work with all stakeholders, local and international, and share information and resources to accelerate in ending this harmful practice to protect and promote the rights of the girl child, all while being sensitive to cultural and religious considerations.
The case is U.S. v. Nagarwala, U.S. District Court, Eastern District of Michigan, No. 17-20274.
Reporting by Jonathan Stempel in New York; Editing by Tom Brown
Ray Otton says
Ethnocentrism or the theory that all cultures have equal value comes to a full stop when it targets your privates.
Stuart Bell says
“Islam in a man is as dangerous as rabies in a dog ”
Winston Churchill
Tom Haskins says
It is offensive, to me, to see a woman’s face and head covered, here in my country. To me, it is as offensive as it would be for a jew to see men dressed as Nazi soldiers. We do not practice sharia law here. I have been told it is their religion….to that I say, ‘there are not going to or from church’. I am then told that their religion requires it…to that I say ‘we do not practice sharia law here’.
Liberals…
Jack Trumpat antiquated court room. says
Common sense should prevail in all legal matters, but it does not. As many of us believe, “lawyers write laws so lawyers make more money”. In my opinion, lawyers love arguments that create higher invoices. Dis agree with me if you like, but who do you know that underpaid a lawyer ? And/or didn’t have to go through a ridiculous mess
In the meantime………the judge that came to this decision ? All female members of his or her family should be forced to submit to FGM. THAT would put this disgusing procedure in perspective in that Court Room. ALSO this judge, should have all the male members of the family turned into eunuchs. THEN we can discover the true spirituality of this mutilation. After all, Shariah Law, having been conceived so long ago that Hammurabi and “an eye for an eye” were the laws of the world. Well what’s good for one is good for another should work even in that antiquated Court room.
In the meantime, i’m disgusted with hearing this.
Ray Otton says
Histrionics aside there is a valid argument for striking down this FEDERAL law.
The prosecutors failed to show that the federal government had the authority to bring the charges. The judge noted that regulating practices like this is a state’s responsibility.
He rejected arguments that the law allowed for federal prosecution because Congress has a right to regulate commerce and health care or can enact laws to support international treaties that the United States has signed. (Ah, that good old commerce clause. Used for so many of Liberals’ agenda items…………………….like Obamacare mandates, but I digress).
His point was that Congress overstepped it’s bounds by legislating to prohibit FGM because FGM is a local criminal activity which, in keeping with longstanding tradition of our federal system of government, is for the states to regulate, not Congress.
Next up on the states’ rights docket?
Roe V Wade. ( Not a discussion of the best way to get across Kings Creek )
Paul Plante says
UNITED STATES SUPREME COURT – OCTOBER TERM, 2011
Syllabus
NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 11393. Argued March 26, 27, 28, 2012 Decided June 28, 2012*
2. CHIEF JUSTICE ROBERTS concluded in Part IIIA that the individual mandate is not a valid exercise of Congresss power under the Commerce Clause and the Necessary and Proper Clause. Pp. 1630.
(a) The Constitution grants Congress the power to regulate Commerce. Art. I, §8, cl. 3 (emphasis added).
The power to regulate commerce presupposes the existence of commercial activity to be regulated.
This Court’s precedent reflects this understanding:
As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching activity. E.g., United States v. Lopez, 514 U. S. 549, 560.
The individual mandate, however, does not regulate existing commercial activity.
It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.
Congress already possesses expansive power to regulate what people do.
Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.
The Framers knew the difference between doing something and doing nothing.
They gave Congress the power to regulate commerce, not to compel it.
Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.
The individual mandate thus cannot be sustained under Congresss power to regulate Commerce. Pp. 1627.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Acts other reforms.
Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___.
The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it.
Even if the individual mandate is necessary to the Affordable Care Acts other reforms, such an expansion of federal power is not a proper means for making those reforms effective. Pp. 2730.
3. CHIEF JUSTICE ROBERTS concluded in Part IIIB that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.
But, for the reasons explained, the Commerce Clause does not give Congress that power.
It is therefore necessary to turn to the Governments alternative argument: that the mandate may be upheld as within Congresss power to lay and collect Taxes. Art. I, §8, cl. 1.
In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product.
Because every reasonable construction must be resorted to, in order to save a statute from unconstitutionality, Hooper v. California, 155 U. S. 648, 657, the question is whether it is fairly possible to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 3132.
Paul Plante says
UNITED STATES SUPREME COURT – OCTOBER TERM, 2011, continued ….
Syllabus
NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 11393. Argued March 26, 27, 28, 2012 Decided June 28, 2012*
The reach of the Federal Governments enumerated powers is broader still because the Constitution authorizes Congress to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. Art. I, §8, cl. 18.
We have long read this provision to give Congress great latitude in exercising its powers:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
McCulloch, 4 Wheat., at 421.
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nations elected leaders.
Proper respect for a co-ordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.
United States v. Harris, 106 U. S. 629, 635 (1883).
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.
Those decisions are entrusted to our Nations elected leaders, who can be thrown out of office if the people disagree with them.
It is not our job to protect the people from the consequences of their political choices.
Our deference in matters of policy cannot, however, become abdication in matters of law.
The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.
Marbury v. Madison, 1 Cranch 137, 176 (1803).
Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.
The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.
Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshalls Defense of McCulloch v. Maryland 190191 (G. Gunther ed. 1969).
And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.
Marbury v. Madison, supra, at 175176.
The questions before us must be considered against the background of these basic principles.
Margot Gorske says
Freedom of religion does not include violence against children. We are not Islam, a religion of violence the world over. We do not permit Sharia law because we believe in the separation of church and state. Islamic doctors should be prosecuted, not excused.
Paul Plante says
Freedom of religion should not include violence against children!
But if one studies the history of “religion,” one finds that quite often, it is quite violent.
Consider the Maryland Toleration Act of 1649, which only granted tolerance to Christians who believed in the Trinity:
…no person or persons…professing to believe in Jesus Christ, shall from henceforth be anyways troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this Province…
end quotes
Settlers who blasphemed by denying either the Trinity or the divinity of Jesus Christ could be punished by execution or the seizure of their lands.
That meant that Jews, Unitarians, and other dissenters from Trinitarian Christianity were practicing their religions at risk to their lives.
Any person who insulted the Virgin Mary, the apostles, or the evangelists could be whipped, jailed, or fined.
Following the Glorious Revolution of 1688 in England, when the Catholic King James II of England was deposed and the Protestant William III ascended the throne, a rebellion of Maryland Puritan Protestants overthrew Calvert’s rule.
They quickly rescinded the Toleration Act and banned public practice of Catholicism, and it would never be reinstated under colonial rule.
In 1699, John Coode, best known for leading a rebellion that overthrew Maryland’s colonial government in 1689, was accused of speaking out against the Christian faith and was put on trial for blasphemy.
A jury found him guilty and sentenced him to pay a 20-pound sterling fine and to be bored through the tongue with a red hot iron.
So there is a glimpse at “religion,” anyway.
Tom Haskins says
and women should remove the sheets from their heads and faces.