DETROIT -- A Detroit judge has dropped nearly all the charges against a Michigan doctor accused of performing female genital mutilation on at least nine underage girls, according to court documents.
In a decision filed Tuesday, Judge Bernard Friedman ruled that the federal female genital mutilation law is unconstitutional and that Congress did not have the right to criminalize the practice, and therefore he dismissed six of eight charges in the United States' first federal case involving the procedure.
"Congress overstepped its bounds by legislating to prohibit [female genital mutilation]," Friedman wrote, calling it a "local criminal activity" for the states to regulate, not Congress.
Dr. Jumana Nagarwala is the lead defendant in the case. While the charges of conspiring to commit and committing female genital mutilation, as well as aiding and abetting others in doing so, have been dropped, Nagarwala still faces charges of conspiring to travel with intent to engage in illicit sexual conduct and conspiring to obstruct an official proceeding. She was charged alongside Dr. Fakhruddin Attar, his wife, Farida Attar, and five other residents of Michigan and Minnesota.
Her attorney, Shannon Smith, said she and Nagarwala are thrilled with Friedman's decision.
"He wrote a well-reasoned opinion and we are happy to see that his conclusion about the constitutionality of the law matched our analysis as well," Smith said Tuesday. "My client is ecstatic, but she's still nervous because she still faces other charges in federal court."
Procedures are banned in 44 countries
Female genital mutilation refers to "all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for cultural or other nonmedical reasons," according to the United Nations Population Fund. While it is performed for myriad sociological, cultural, religious, hygienic and socioeconomic reasons, it is banned by law in at least 44 countries, including the United States. The World Health Organization considers the procedure a human rights violation.
The procedures Nagarwala is accused of performing occurred from 2005 to April 21, 2017, according to the criminal complaint. Prosecutors say that Attar, an internal medicine physician, allowed Nagarwala, an emergency room physician, to perform the banned procedures at his medical clinic in Livonia, Michigan, after it closed for the day. Nagarwala was allegedly assisted by Attar's wife, Farida, and additional adults named in the complaint.
Nagarwala and the Attars are accused of instructing others not to speak about the procedures. The nine underage girls are from Michigan, Minnesota and Illinois and are between the ages of 8 and 13, according to court documents.
Congress had no authority to pass a law criminalizing female genital mutilation, judge says
The enactment of a law criminalizing female genital mutilation was not a permissible use of congressional power, Friedman wrote in his opinion, concluding that the law itself was unconstitutional.
"As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis," Friedman wrote, later noting that the Supreme Court has said that individual states, not the federal government, have the authority to police local criminal activity.
Friedman also noted that although Congress may regulate a practice if it is "commercial or economic in nature and that substantially affects interstate commerce," but "as despicable as [female genital mutilation] may be, it is essentially a criminal assault" and not a commercial or economic enterprise, Friedman wrote.
Nagarwala's attorney expects the US government will appeal the decision. A trial date has been set for April 29, 2019.
Gina Balaya, a spokeswoman for the US Attorney's Office, said, "We are reviewing the judge's opinion and will make a determination whether or not to appeal at some point in the future."