Washington — Legal experts say Congress could revise the federal ban on female genital mutilation to pass constitutional muster, but lawmakers are unlikely to consider the issue a priority. 

A Detroit federal judge last month ruled unconstitutional the 22-year-old federal ban on female genital cutting, tossing out related charges against a Michigan doctor accused of performing the procedure on two 7-year-old girls brought to a Livonia clinic.

U.S. District Judge Bernard Friedman concluded that lawmakers "overstepped" when they passed the 1996 law, in part because cutting girls' genitalia is a "local criminal activity," and criminal law is generally regulated and enforced by the states.

Prosecutors have not decided whether to appeal, but the matter is being closely followed by members of the doctor's Shiite Muslim sect, the Dawoodi Bohra, and human rights organizations opposed to female genital mutilation, often abbreviated as FGM. 

The case involving Northville physician Jumana Nagarwala represents the first-ever charges of FGM in the United States. Through her attorney, she has denied performing FGM, claiming she performed a benign procedure that did not involve cutting girls' genitalia.

Nevertheless, Nagarwala's prosecution prompted Michigan last year to boost the penalties criminalizing FGM, defined as the removal of all or part of a female's genitals for non-medical reasons. 

Twenty-three states, however, have not criminalized FGM, and critics argue the ruling could mean girls will now be taken there for the procedure.

"The practice is incomprehensible to me, so whether it’s Congress or states we need to take stronger action to make sure that not only these defendants but others are discouraged from any kind of activities like this in the future," said U.S. Rep. Dave Trott, a Republican whose district includes Livonia where the alleged cutting occurred.

"The sad part is if we passed a law now to address what these people did and try and make sure that it could withstand constitutional challenge, it would be too late to impact these defendants."

Trott, who is retiring, said he doesn't see Congress taking the issue up before year's end, in part because lawmakers are working to reach a funding agreement to avoid a partial government shutdown by a Dec. 21 deadline. 

His bill to hike the penalty for FGM from five to 15 years imprisonmentpassed the U.S. House a year ago, but the Senate has never taken up the legislation. 

The measure expressed the "sense of Congress" that states should enact laws requiring health care professionals, teachers and school employees to report instances of suspected FGM to law enforcement.

Trott's successor in Congress, Democratic Rep.-elect Haley Stevens of Rochester Hills, said she agrees that FGM should be illegal. 

“We need to protect our girls from the practice of FGM,” she said. "I do support what Congressman Trott put forward. We have to go a little bit further than just disavowing the practice. It's not something we want to see in our communities."

Stevens said she would "potentially" support efforts in Congress to revise the statute that Freidman threw out. 

Judge's reasoning 

Court records say genital mutilation is performed by some Bohras to suppress female sexuality, reduce sexual pleasure and curb promiscuity. 

The World Health Organization says the the procedure has no health benefits and can lead to problems with urinating, infections, as well as complications in childbirth.

"As despicable as this practice may be, it is essentially a criminal assault," Friedman wrote in his Nov. 20 opinion. 

He concluded that, while Congress may regulate interstate commerce, FGM does not appear to be a "commercial activity," as no money changed hands. 

"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?" Friedman wrote. 

The judge also suggested that since the procedure involves unlawful touching and penetration, it could be prosecuted "in every state under existing criminal sexual conduct statutes, to say nothing of battery or child abuse statutes."

Legal experts said Congress could rewrite the FGM statute to address the ruling by explicitly tying the conduct at issue to interstate commerce. 

"The best way to do it, I think, would be to find some connection between the surgery and commerce among the states. You could say it should be unlawful to bring anyone across a state line to participate in this kind of surgery, as a surgeon or a patient," said Ira Lupu, an expert in constitutional law at George Washington University School of Law. 

"This is slightly more strained, but you could say no one may perform this kind of surgery using instruments that have been sold or transported in interstate commerce. That would be another formula that probably would cover just about everybody."

Michael Rosman, general counsel for the Center for Individual Rights, suggested that even then, the statute might be vulnerable to claims it violates religious freedom or applies only to one sect. 

"If Congress wanted to pass a new law which would be less subject to attack by defendants, I think it would have to also at least consider the other two problems," Rosman said. 

Lupu dismissed suggestions that the statute would lose an equal-protection claim that it was drawn to guard girls from circumcision complications without extending the same protection for boys. 

"It's easy enough to explain that male circumcision in the ordinary course is not mutilating or pain inducing, or sexual performance inhibiting. It does not do the damage that this does," he said of FGM. 

Lupu also argues a religious freedom challenge would fail.  

"Under federal constitutional law, no one has a right of exemption from general regulations of medicine or family life because something is religiously prescribed," said Lupu, who specializes in the religion clauses of the First Amendment.

"There is no way that sort of claim to mistreat a child physically is going to be recognized as a matter of religious freedom."

Twitter: @nannburke

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