Around February of last year, two little girls around the age of seven traveled to Michigan with their mothers on what they were told was “a special girls’ trip.” In Michigan, they were taken to a clinic to meet an emergency room doctor who did not work there. The first little girl assumed they were going to a doctor’s office because their “tummies hurt,” as she advised the other child and thought she was going to undergo a procedure that would “get the germs out of her.” Once there, both girls took off their pants and underwear and laid on the examining table. Each described the process; the first seven-year-old said that Nagarwala “pinched her in the place where she goes pee,” while the second seven-year-old said she was given a “shot” in her upper right thigh that made her scream in pain. Afterwards, she said she could barely walk, and felt pain all the way down to her ankle. The girl also reported seeing her own blood on the table. In response to the girl’s pain, the doctor who did the procedure told her she was fine.
After, they were told not to talk about the procedure.
The procedure described above was that of female genital mutilation. It is a cultural procedure practiced on women around the world in a variety of religions and cultures: in certain Islamic groups, African cultures, and even in some extremist Christian religious groups. However, female genital mutilation is practiced for one reason: it is performed on girls at a young age in order to restrain female sexuality through pain, and make a woman more “clean,” Female genital mutilation may sometimes be passed as “female circumcision,” but unlike male circumcision, it has no beneficial health benefits and mutilates the body in a way that the medical field cannot fully repair or even understand. It also leaves lasting, permanent pain for many survivors.
While female genital mutilation is on the decline abroad, it has tripled in the U.S., so anti-FGM activists, politicians, and media outlets around the country were eagerly awaiting the verdict to the first FGM court case in America (described at beginning); due to the secrecy of the practice, female genital mutilation cutters and parents who permit the abuse are rarely caught — and the victims number around 500,000 children per year, according to a U.S. Government Accountability Office report.
Thus, the reaction of the American people was one of tremendous shock when all federal genital mutilation charges — and the law itself — were suddenly overturned at the lower level circuit court. According to Judge Friedman, the judge who presided over the case, and as stated in his official opinion, the FGM laws cannot stand on the Treaty Clause or the Commerce Clause as a basis for its constitutionality. The judge also emphasized rather extravagantly the basic principles of federalism: separation between state and federal government, and added that protecting children against female genital mutilation would have to be the job of the fifty individual states instead. He also added that the FGM law was discriminatory.
This opinion not only forces the U.S. a step backward, but the legal argument Judge Friedman made is weak and flawed:
First, the Treaty Clause that the federal government pointed to for support of the FGM law states that the president has the power to enact treaties, provided 2/3 of the Senate supports the treaty. Additionally, and key here, Congress can pass law to effectuate the treaty. The specific treaty pointed to in this case is the International Covenant on Civil and Political Rights, and two of the demands stipulated in the treaty relate to the case: first, Article 3 states that the equal rights of men and women are to be guaranteed; and second, Article 24 states that all children shall be protected to the full extent without discrimination. Female genital mutilation is carried out to suppress female sexuality and targets women, thus, there is no denial that it falls under the umbrella of equal rights issues. Second, since children are the ones at risk of being mutilated and mentally scarred by genital cutting, there is no doubt that Article 24 also applies. However, Judge Friedman blatantly denied that female genital mutilation was an equal rights issue and said the two had no relationship. He also wrote that genital cutting did “not logically further the goal of protecting children on a discriminatory basis.” While the type of language Article 24 uses allows one to infer, with common sense, that discriminating in this case mostly refers to excluding minorities of children in the process of protecting them, Friedman turns the language on its head by stating that targeting a specific crime in the effort of protecting children is discriminatory.
It is also incorrect. There is no evidence that female genital mutilation is a specific religious practice, nor is it a specific cultural practice. Additionally, no religious texts demand the cutting of children’s genitals, and even if there were, it would not absolve the U.S. from its responsibility of protecting little girls.
The logic Judge Friedman used, and his arguments, do sound chillingly in favor of the practice, however.
Another more significant basis for which the government defended its FGM law was, as aforementioned, the Commerce Clause. It has historically been used as a power expander for the U.S. government and is a strong card for federal legislation. While this has allowed it to take what is arguably an unconstitutional amount of control at times, such as during and post-FDR period, it has also been a necessary and key clause for important humans rights issues. For example, it provided the foundation which allowed the government to outlaw (on many counts) and eliminate discrimination for African Americans in the 60s. However, due to the fact that its power is, to an extent, artificially created by the courts, its use largely depends on the opinions of the current judges.
The Commerce Clause has one major stipulation: the activity the government is regulating must be interstate in nature and, if not a commercial activity, at least significantly impact the national economy. The fact that a number of the victims were transported from out of the state where the procedure was performed provides easy support for its “interstate” nature. It’s also blatant proof for another argument by Friedman: that female genital mutilation is a “local criminal activity” (and thus should be regulated by states). However, Friedman denied this argument and refuted ideas that any transactions occurred with female genital mutilation crimes. He also denied the argument that female genital mutilation is connected to the healthcare industry.
Instead, Friedman accused the federal government of overreaching and overturned the female genital mutilation law, essentially destroying it. While this is not the end for the little girls who have been or will be victims of genital cutting — the doctor who performed the procedure was still charged with sexual abuse along with several key conspirators, and the case can certainly be taken to the appeals court — it still provides complications. First, several parents were acquitted altogether of charges due to the dropping of the FGM law, shrinking the effects the law once had and completely absolving some perpetrators of any responsibility. It also sends a message to the already secret community of female genital mutilation supporters that the government is not taking a firm stance on the heinous crime. Lastly: it takes away hope from female genital mutilation survivors.
Figure from the AHA Foundation: Only 27 states have ratified anti-FGM laws, leaving the remaining 23 (depicted in white) to scramble for new legislation now that the federal law has been overturned.
This case should have been a simple win for female genital mutilation victims; instead, a weak decision was made against solid legal counterpoints, and the division between state and federal government was prioritized over the protection of little girls – in a case that presented no threat to the power balance. With the judge’s additional attack on FGM issues through his statements about discrimination and equal rights, a peculiar precedent has been forced into existence, and with detrimental effects.
Almost thirty countries around the world have made female genital mutilation illegal. However, the U.S. is no longer one of them.