Bills to restore anti-genital cutting law could see renewed push in Congress

Melissa Nann Burke
The Detroit News

Washington — Efforts to revise the federal law prohibiting female genital cutting had been stalled in the U.S. House, but leaders appear poised to take up the issue this fall. 

Republican lawmakers have pushed legislation to restore the law after a ruling by a federal judge in Michigan declared the statute unconstitutional last year. 

House Democrats are now working on a similar bill after their bid to intervene in the underlying Michigan case fizzled last month, leading to renewed movement on the legislative front in Congress.

The rising sun divides the West Front of the U.S. Capitol in Washington.

"We’re very motivated and very interested in seeing the legislation get through committee and be brought to the floor," said U.S. Rep. Scott Perry, R-Pennsylvania, who introduced an anti-cutting bill in June. 

Female genital mutilation, often abbreviated as FGM, is the ritual removal, scraping or cauterizing of all or part of a girl's genitals for non-medical reasons. 

Detroit U.S. District Judge Bernard Friedman's ruling last year proved a major blow to the first-of-its-kind prosecution involving a Detroit-area doctor charged with cutting the genitals of two 7-year-old girls at a Livonia clinic.

Earlier this year, the Trump administration "reluctantly" determined it could not successfully appeal the judge's decision, reasoning that the statute's wording was too weak to withstand challenge by the defendants. Officials suggested a swift legislative fix instead. 

In April, Solicitor General Noel Francisco, while condemning FGM as "an especially heinous practice," provided a detailed legislative proposal to Judiciary Committee leaders in both chambers. 

Six months later, bipartisan lawmakers on Capitol Hill have yet to rally behind a bill, as higher-profile matters like the ongoing impeachment inquiry into President Donald Trump occupied staff on the Judiciary and Foreign Affairs committees that would likely take up anti-FGM legislation.

Perry said he has struggled to find a Democratic co-sponsor for his bill or to engage Democrats in the process. He's unsure why.  

"We wanted to make a strong statement at the federal level that this can’t be allowed, this cannot stand," said Perry, a former state lawmaker. 

"Even though that law might not have passed constitutional muster as far as the judge was concerned, the federal government cannot be seen as sanctioning or condoning or just turning its head for this horrific, barbaric practice."

Perry said he's hopeful the bill will receive attention after Congress returns from recess this month, but so far it's not seen any movement in the Democratic-led House Judiciary Committee, despite urging by the panel's senior Republicans.  

In the Senate, a companion bill introduced by Sen. Marsha Blackburn, R-Tennessee, also has only GOP co-sponsors. 

Blackburn said she aims this fall to move the legislation through the GOP-controlled Senate Judiciary Committee — on which she sits. 

"Everyone should be against the genital mutilation of women and young girls," Blackburn said in an interview.

"When you look at this, and there are young girls who have this atrocity pushed upon them when they are sometimes are under 10 years of age — this is something where there should be bipartisan agreement that we should end this." 

House aides said privately that Democrats didn't sign onto the Perry-Blackburn bill while they were trying to intervene in the appeal of the Michigan criminal case to defend the federal law prohibiting FGM. 

But last month, the U.S. Court of Appeals for the 6th Circuit denied House Democrats' request to intervene, effectively ending the appeal. 

"We have seen bipartisan support from this Congress for FGM. I am confident we’re going to see that happen again," said Amanda Parker, senior director at the nonprofit AHA Foundation that works to end FGM. 

"Previously, the Democrats were holding off on getting involved here because they were really hopeful the 6th Circuit would allow Congress to intervene and to appeal."

Earlier this year, Perry co-sponsored a measure denouncing FGM with Florida Rep. Lois Frankel, a Democrat. The resolution "affirms the importance of ending the practice ... for the safety and security of women," and passed the House 393-0 in May. 

U.S. Rep. Scott Perry, R-Pennsylvania

The Perry-Blackburn bill seeks to explicitly tie the conduct at issue to Congress' authority to regulate interstate commerce. 

Interstate commerce was one of the issues that Judge Friedman focused on last year in his ruling. He concluded that cutting girls' genitalia was not an economic activity but a form of physical assault — a local criminal activity for states to regulate.   

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

While Congress may regulate interstate commerce, FGM does not appear to be a "commercial activity," as no money changed hands, Friedman wrote. 

"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 Perry-Blackburn bill sets out six circumstances where FGM affects interstate commerce, including when the defendant or victim travels over state lines for the procedure or payment is made affecting interstate commerce in relation to FGM. 

Democrats on the Judiciary Committee are planning to soon introduce an FGM bill that also would explicitly prohibit FGM where it involves interstate or foreign commerce and would expand on the Perry-Blackburn bill, a House aide said. For example, the bill would boost the penalty from five years to 10 years in prison.

Perry stressed that he's open to collaborating with Democrats and others to revise and improve aspects of his bill as needed, while emphasizing the urgency of taking action.

"We're more than willing to have a conversation about that," he said. 

"We keep working it every single week, but as you’re probably aware it's hard to get things moved in Congress traditionally anyhow and with some of the things going on in Washington right now, it's exceptionally difficult."  

Perry acknowledged his bill wouldn't necessarily criminalize FGM in cases where it's carried out locally and doesn't affect interstate commerce.

That's why he encourages state legislatures to adopt legislation banning FGM, as Pennsylvania did this summer and Michigan did in 2017. 

"While we have a great concern about the FGM that does occur locally, unfortunately that is not the purview of the federal government or federal law enforcement but the purview of local government," Perry said. 

"There’s still 15 states left that don’t deal with FGM from a criminal statute standpoint, and we want to encourage them as vociferously as possible that this doesn’t get better over time," Perry added. 

"For the sake of the child that has to undergo it — there are children in these states who are laid bare of protection. Often times, their relative or parent in particular are the ones who sanction it." 

Parker said the "silver lining" of Friedman's decision has been it highlighted the need for legislators to pass state laws to prohibit female genital cutting. Seven states have passed anti-FGM laws so far in 2019 alone, she said.  

"This is something that is filling gaps that the federal law can't necessarily tackle," Parker said. "Importantly, we need education and outreach in every single state for both communities and professionals, and that's something that should be happening on a state level."

Model legislation crafted by the AHA Foundation includes a provision requiring community-education programs and outreach activities about the health risks and emotional trauma inflicted by FGM, as well as the criminal penalty for practicing it.

"We also like to see support for survivors in the form of civil protections," Parker said.

That could include civil remedies for victims and extending the statute of limitations to 10 years past a victim's 18th birthday, she said. 

FGM is a traditional ritual in parts of Africa, the Middle East and Asia and among migrants from those regions. An estimated 200 million women and girls have experienced female genital cutting worldwide.

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

Northville physician Jumana Nagarwala, the doctor at the center of the Michigan case, is part of the Dawoodi Bohra sect within the Ismaili branch of Shia Islam. 

Some in the Bohra community have spoken against female genital cutting, saying it's performed to suppress sexuality, reduce sexual pleasure and curb promiscuity.

Through her attorney, Nagarwala has denied performing FGM, claiming she performed a benign procedure that did not involve cutting girls' genitalia.