Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... 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 government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.