DETROIT — The U.S. Justice Department said a federal ban on genital mutilation should be rewritten to protect it from constitutional challenges after a judge in Detroit threw out charges against members of a Muslim sect.
The government recently withdrew an appeal of a decision by U.S. District Judge Bernard Friedman in the first such federal prosecution in the country. In a letter Wednesday to Congress, Solicitor General Noel Francisco called genital mutilation an “especially heinous practice” but said the law needs to be changed to mesh with U.S. Supreme Court precedent.
“The Centers for Disease Control and Prevention estimates that half a million women and girls in the United States have already suffered FGM or are at risk for being subjected to FGM in the future,” Francisco said.
Genital mutilation, also known as female circumcision or cutting, has been condemned by the United Nations. The World Health Organization says the procedure carries no health benefits and can cause health problems.
Dr. Jumana Nagarwala was charged with performing it on nine girls at a suburban Detroit clinic, while others were charged with assisting her. She denies any crime and says she performed a religious custom for members of the India-based Dawoodi Bohra. The girls were from Illinois, Michigan and Minnesota.
In November, Friedman said the ban was unconstitutional . He found that Congress lacked authority to attack the practice under the Commerce Clause because the procedure is not a commercial activity. The judge said states could step in with their own laws or prosecute the practice under sexual battery and abuse.
“No state offers refuge to those who harm children,” Friedman wrote.
Francisco said he believes the federal law can be fixed by making genital mutilation a crime if someone crosses state lines to engage in it, among other steps.
Nagarwala’s attorney, Shannon Smith, said she’s pleased that the government’s appeal has been dropped. The doctor, who was arrested in 2017, and three other people still face additional charges, including conspiracy to obstruct law enforcement.
