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Why the U.S. ban on female genital mutilation was ruled unconstitutional

The first federal charges of female genital mutilation have been dismissed by a federal judge, whose ruling also declared the U.S. law banning the practice unconstitutional.

In his 28-page decision, U.S. District Judge Bernard Friedman said Congress “overstepped its bounds” in prohibiting the practice in 1996, adding that 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.”

The judge’s decision voided the charges of FGM and conspiracy against two Michigan doctors accused of cutting at least nine minor girls in a Detroit clinic: Dr. Jumana Nagarwala, the Michigan physician accused of performing FGM on the girls, and Dr. Fakhruddin Attar, who was accused of allowing Nagarwala use his clinic for the procedures.

Friedman also dismissed charges against two mothers accused of assisting in the procedures, as well as four mothers accused of bringing their daughters to the clinic for the practice, some across state lines.

The defendants of the case are all members of the Indian Muslim Dawoodi Bohra community, which practices a minor form of FGM as a religious rite of passage.

Here’s what the judge’s ruling means for a practice that has been outlawed by more than 50 countries.

A serious blow to a historic case

FGM, the partial or complete removal of the clitoris for nonmedical reasons, is a criminal offense in 27 U.S. states. Michigan passed a ban last year against the practice, soon after the first federal case was opened in that state.

Michigan’s law made the practice punishable for up to 15 years in prison, while the federal law dictates a sentence of up to five years in prison. Since the federal case began in April 2017, the defendants can’t be retroactively charged under the new state law.

The judge’s ruling came after a request from Nagarwala and her co-defendants to dismiss the charges, claiming that the federal law was unconstitutional because Congress did not have the authority to pass the law. Friedman agreed.

The judge said the government did not show FGM as a commercial activity or interstate market that would be subjected to federal law, like other illegal markets. “This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?”

The Centers for Disease Control and Prevention have estimated at least 513,000 U.S. women and girls are at risk of FGM or have already been subjected to the procedure. Of those, more than 118,000 who are at risk live in the 23 U.S. states without legislation against FGM, according to the CDC. Over 10,000 at-risk girls live in Michigan alone.

What are anti-FGM advocates saying?

Mariya Taher, a FGM survivor who also spoke to the PBS NewsHour at the opening of the federal case in 2017, said the ruling caught her off guard, “but the tactic of the defense was not surprising.”

“I knew they were trying to find the federal law unconstitutional,” said Taher, the founder of Sahiyo, a group opposed to FGM that began to collect global reaction in the wake of Friedman’s ruling.

Taher said she didn’t see the judge’s ruling as being about whether FGM should be legal, but that nevertheless the message will be seen as a win to those who continue to practice FGM.

“Opponents are going to use this ruling as a way to allow [FGM] to continue, and that gives me concern that they will continue to perpetuate the cutting of our daughters,” Taher told the NewsHour. “There are many survivors that feel disheartened to hear [the ruling] and felt traumatized” by it.

“The message it sent was a punch in the gut to survivors around the country and around the world,” said Shelby Quast, the Americas Director of Equality Now, an organization that submitted an amicus brief in the case. “This decision doesn’t only have an impact on those nine girls, but the tens of thousands of girls that live across the U.S. and are at risk of FGM.”

What’s next?

Gina Balaya, a spokesperson for the U.S. Attorney’s Office, said the federal government is reviewing Friedman’s opinion and deciding whether to appeal the case.

Quast said the narrow ruling was not meant to condone FGM, but to question Congress’ authority to pass the law. “We need to not make this more than it is, but certainly push for an appeal.”

Nagarwala’s attorney Shannon Smith celebrated with the judge’s decision, but anticipates an appeal from the government.

“Oh my God, we won,” Smith reportedly said after the decision was announced. “But we are confident we will win even if appealed.”

Nagarwala will be tried in April on the other charges, including conspiracy to travel to engage in illicit sexual conduct, and she and other defendants face obstruction charges as well.

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