Florida Gov. Ron DeSantis visiting Michigan in April

Senate sends bill restoring female genital mutilation law to Trump's desk

Melissa Nann Burke
The Detroit News

Washington — The U.S. Senate this week approved bipartisan legislation to amend the federal law prohibiting female genital cutting.

The bill, which passed the House this fall, now heads to the president's desk for his signature. The measure is in response to a 2018 federal court ruling in Michigan that deemed the statute unconstitutional.

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

The bill is intended to clarify Congress' authority to make it a crime for any parent, guardian or caretaker to facilitate or consent to the procedure on a minor, or for anyone to perform the procedure, or to transport a minor to undergo FGM. 

The text would also increase the maximum prison sentence for the crime from five to 10 years, and requires the attorney general, in consultation with other officials, to submit an annual report to Congress on FGM.

The U.S. Department of Justice earlier this year expressed support for the legislation, highlighting estimates from the Centers for Disease Control and Prevention that half a million women and girls in the U.S. have suffered FGM or are at risk for being subjected to it. 

The procedure "is a form of gender-based violence and child abuse that harms victims not only when they are girls, suffering the immediate trauma of the act, but also throughout their lives as women, when it often results in a range of physical and psychological harms," Assistant Attorney General Stephen E. Boyd said in a March statement.

“The Department of Justice condemns this practice and urges Congress to act on legislation that will clarify the Department’s ability to prosecute such offenses."

Lawmakers crafted the text to explicitly tie the practice to Congress' authority to regulate interstate commerce. 

Interstate commerce was one of the issues that Detroit U.S. District Court Judge Bernard Friedman raised in 2018 when 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 and not Congress.   

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

That ruling dealt a 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.

The Trump administration last year "reluctantly" determined it could not successfully appeal Friedman's decision because the statute's wording was too weak to withstand challenge by the defendants in the case.

Then-Solicitor General Noel Francisco had provided a detailed legislative roadmap to Judiciary Committee leaders in both chambers. 

A legislative fix was delayed as House Democratic leaders attempted to intervene in the appeal of the Michigan criminal case to defend the law prohibiting FGM. But the U.S. Court of Appeals for the 6th Circuit denied their request a year ago, effectively ending the appeal. 

The practice 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.