DETROIT — In a major blow to the federal government, a judge in Detroit has declared America’s female genital mutilation law as unconstitutional, thereby dismissing the key charges against two Michigan doctors and six others accused of subjecting at least nine minor girls to the cutting procedure in the nation’s first FGM case.

The historic case involves minor girls from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.

The judge’s ruling also removed three mothers from the case, including two Minnesota women whom prosecutors said tricked their 7-year-old daughters into thinking they were coming to Detroit for a girls’ weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure.

U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that it’s a matter for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.

Currently, 27 states have laws that criminalize female genital mutilation, including Michigan, whose FGM law is stiffer than the federal statute, punishable by up to 15 years in prison. Michigan’s FGM law was passed last year in the wake of the historic case and applies to both doctors who conduct the procedure, and parents who transport a child to have it done.

Gina Balaya, spokesperson for the U.S. attorney’s office, said in a statement: “We are reviewing the judge’s opinion and will make a determination whether or not to appeal at some point in the future.”

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Friedman’s ruling stems from a request by Dr. Jumana Nagarwala and her co-defendants to dismiss the genital mutilation charges, claiming the law they are being prosecuted under is unconstitutional.

More specifically, the defendants have argued that “Congress lacked authority to enact” the genital mutilation statute, “thus the female genital mutilation charges must be dismissed.” They also argue that they didn’t actually practice genital mutilation, but rather engaged in a benign religious ritual that involves only a scraping of the genitals.

For FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Mass., to ban genital cutting worldwide, Friedman’s ruling was a punch to the gut.

“Oh my God, this is crazy,” said Taher, stressing she fears the ruling will put more young women in harm’s way. “Unfortunately, this is going to embolden those who believe that this must be continued … they’ll feel that this is permission, that it’s okay to do this.”

Taher, who at 7 was subjected to the same type of religious cutting procedure that’s at issue in the Michigan case, said she doesn’t expect laws alone to end FGM. But they are needed, she stressed.

“This is a violation of one person’s human rights. It’s a form of gender violence … This is cultural violence,” 35-year-old Taher said.

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The statute at issue states: “Whoever knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person” under the age of 18 shall be fined or imprisoned for up to five years, or both.

Prosecutors argue Nagarwala, the lead defendant, did exactly that when she cut the genitals of two 7-year-old Minnesota girls who were tricked into the procedure in 2017 by their mothers. They said Nagarwala did this with the help of Dr. Fakhuruddin Attar, who is accused of letting Nagarwala use his Livonia clinic after hours to carry out the procedures; and his wife, Farida Attar, who is accused of assisting Nagarwala in the examination room during the procedures and holding the girls’ hands.

Prosecutors allege that Nagarwala may have subjected up to 100 girls to the procedure over a 12-year period, though they have cited nine victims in the case: two 7-year-old girls from Minnesota, four Michigan girls ages 8-12, and three Illinois girls.

Nagarwala, meanwhile, is still facing a conspiracy charge and an obstruction count that could send her to prison for 20 years, along with the Attars. If convicted of conspiracy, Nagarwala faces up to 30 years in prison.


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