Preventing Female Genital Mutilation in the United States: The Legal Threat to Effective Action

In 1996, Congress passed the first federal statute prohibiting female genital mutilation (FGM). In 2018, federal prosecutors initiated a prosecution under the statute. The case, United States v. Nagarwala, involved two doctors, including Jumana Nagarwala, and four mothers, among others, who had been charged with performing or enabling the genital cutting of several girls at a clinic in Livonia, Michigan. The FGM statute criminalized mutilating the genitals of persons aged younger than 18 years or knowingly transporting such persons abroad to do so, and made plain that “no account shall be taken . . . of any belief . . . that the operation is required as a matter of custom or ritual.”¹

FGM comprises all procedures that entail “partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.”² The World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) estimate that more than 200 million girls and women alive today have been subjected to the practice. FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.² Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.² While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal “uncleanliness,” prevent “deviant” premarital sexual activity, preserve “purity,” and hinder sexual pleasure.² FGM is a globally recognized human rights violation rendered unlawful under several international treaties.

THE COURT’S DECISION

On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government’s enumerated powers and thus declared the statute unconstitutional.³ The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.³ The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman’s opinion the final word.^4,5

Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. Federal prosecutors, in defending the FGM statute, argued that the statute was authorized by two constitutional provisions.

First, Congress has power to enact all laws “necessary and proper for carrying into Execution” the federal government’s constitutional powers, including the power to make treaties (US Constitution, Art. 1, Sec. 8). The government contended that the FGM statute was necessary to enforce a 1992 treaty, the International Covenant on Civil and Political Rights (ICCPR), in which the United States promised to “undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”³ The government contended that the FGM ban ensured, as the treaty required, that “[e]very child shall have, without any discrimination as to . . . sex, . . . the right to such measures of protection as are required by his status as a minor, on the part of . . . the State.”^3(p5) The district court rejected this argument because it did not regard FGM as sex-based discrimination prohibited by the ICCPR. As Friedman wrote, “[a]s laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis.”^3(p6) The court continued: even if it could be argued that the statute seeks to enforce the ICCPR, “federalism concerns,” including respect for “state sovereignty in the area of punishing crime . . . prevent Congress from criminalizing FGM.”^3(p10) FGM, the court concluded, is “‘local criminal activity’ which . . . is for the states to regulate, not Congress.”³

Second, the government argued that the statute could be sustained under Congress’s power “[t]o regulate Commerce” among the States.^3(p10) Traditionally, this language has been interpreted broadly to allow Congress to regulate any commercial activity that substantially affects interstate commerce. Courts have previously found that the distribution of contraband and the practice of health care are commercial activities that meet this test. The government analogized that if Congress can regulate the illegal sale of Valium or certain unsafe medical services, then it can regulate FGM, which the government regarded as an illegal form of health care.³ The district court disagreed, writing that “FGM is a form of physical assault, not anything approaching a healthcare service” or “commercial activity.”^3(p22)

WHY THE COURT GOT IT WRONG

The district court’s legal conclusions are seriously flawed. First, the court misinterpreted the ICCPR as a mere “anti-discrimination” treaty. But rather than simply prohibit sex-based discrimination, the ICCPR mandates that signatories protect the civil rights and bodily integrity of all children. Its antidiscrimination provisions, therefore, are in service of its primary protection against harm to children. This interpretation accords with those of the WHO and UNICEF, which have listed the ICCPR as one of several treaties “providing protection . . . against female genital mutilation.”^4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no “single State or local jurisdiction [could] control [FGM]” or protect against the physical, psychological, and civil injury it causes.⁵

Second, the district court mischaracterized FGM as a noncommercial “form of physical assault” rather than as a paid-for health care service within the national market of licensed medical providers. ^3(p22) As federal prosecutors argued, “FGM is usually performed by trained practitioners,” and the statute “contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.”^6(p41) The defendants in this case, moreover, allegedly committed FGM on victims who crossed state lines so that their families could engage in paid transactions.³ Once Congress’s prohibition is understood as a regulation of certain surgical practices, its authority to regulate interstate commerce is clear and the court’s rejection of the government’s analogy to health care looks wrong. This is to say nothing of the economic costs to some women of FGM.⁷

Congress should revise the FGM statute to make its connection with interstate commerce more obvious. Congress could modify the statute so that it prohibits FGM only when performed using surgical tools that have traveled in interstate commerce, for pay by a medical provider that serves interstate clientele, or after a participant has crossed state lines. The Federal Prohibition of Female Genital Mutilation Act of 2019, which attempts to fix the problem, has been introduced in Congress but has not received much traction.

Alternatively, states could prohibit FGM by using their own authority, which is not subject to the constitutional limitations on Congress applied by the district court. Michigan passed its own prohibition on FGM in 2017, joining 27 other states with similar bans, all of which rely on state authority that is considerably broader than Congress’s Commerce Clause power. Given the weakened, unstable path toward congressional authority, states seeking to criminalize FGM should, for now, do so on their own terms. While state prohibitions are better than nothing, they do not match the expressive force of a federal ban, and Congress concluded that no “single State or local jurisdiction” was a match for the problem.⁵