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Judge: 22-Year-Old Genital Mutilation Law Is Unconstitutional

Ruling deals blow to first-of-its-kind Michigan case
By Kate Seamons,  Newser Staff
Posted Nov 21, 2018 1:04 PM CST
In this April 21, 2017 file photo, FBI agents leave the office of Dr. Fakhruddin Attar at the Burhani Clinic in Livonia, Mich., after completing a search for documents.   (Clarence Tabb Jr. /Detroit News via AP, File)

(Newser) – A Michigan judge acknowledged that female genital mutilation is "despicable"—in a 28-page opinion that concluded the federal government's 22-year-old law against the practice is unconstitutional. As such, the mutilation charges against two Michigan doctors have been dismissed. Dr. Jumana Nagarwala, who allegedly performed the surgery, and Dr. Fakhruddin Attar, who allegedly allowed his Livonia clinic to be used, were defendants in America's first female genital mutilation case, which involves 9 alleged victims. Lawyers for the doctors argued the constitutionality point, and US District Judge Bernard Friedman found "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 Detroit Free-Press explains the federal law was passed under the Commerce clause; Friedman determined there was "nothing commercial or economic" about the mutilation, while the prosecution argued interstate commerce can be at play, as when parents drive their girls across state lines to undergo the procedure. As for state regulation, 27 states ban it, and Michigan is included in that list. But its law was passed subsequent to Nagarwala's April 2017 arrest, reports the AP; as such, it can't be applied to the doctors, and so prosecutors were relying on the federal law, which carries a sentence of up to five years. Prosecutors say they will decide whether to appeal the ruling. Nagarwala isn't off the hook, however, and faces conspiracy and obstruction charges that carry a sentence of up to 20 years if she's convicted. The trial is set to begin in April. (This year, the US deported a man back to Ethiopia over the practice.)

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