The District Court of Eastern Michigan, USA, has declared unconstitutional a law passed by Congress banning the practise of Female Genital Mutilation(FGM).
The Court held that Congress lacked authority to criminalize the act, which was for the states to regulate.
"Congress overstepped its bounds by legislating to prohibit FGM. Like the common law assault at issue in Bond, FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress", observed Judge Bernard A Friedman in the order passed on November 20.
The Court was adjudicating a criminal case filed against Dr.Jamuna Nagarwala and Dr. Fakhruddin Athar who had performed FGM on four minor girls. The mothers of the victim girls were also made accused in the case.
The constitutionality of the law was challenged in the proceedings. The Government defended the law on the ground that the "necessity clause, proper clause and commerce clause" of the Constitution permitted Congress to legislate on state subjects.
It was contended that the law was enacted in furtherance of an international treaty,International Covenant on Civil and Political Rights(ICCPR), especially Articles 3 and 24 of it. The Court however rejected the argument on ground that there was no rational link between ICCPR and FGM. "Article 3 seeks to ensure equal civil and political rights (e.g., the freedom of expression, the right to participate in elections, and protections for defendants in criminal proceedings) for men and women, while the FGM statute seeks to protect girls aged seventeen and younger from a particular form of physical abuse. There is simply no rational relationship between Article 3 and the FGM statute", it was held.
Regarding Article 24, it was observed: "Article 24 is an anti-discrimination provision, which calls for the protection of minors without regard to their race, color,sex, or other characteristics. 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"
The reliance on commerce clause by stating that law tries to regulate interstate business of FGM was rejected. The Government claimed that like child pornography and marijuana, an interstate market exists for FGM.
However, the Court found that no such market existed for FGM. "The government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states. 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 government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing".
The government also contended that FGM is “an illegal form of healthcare,” and since Congress can regulate healthcare, it can regulate FGM. In an effort to show that FGM is a form of healthcare, the government pointed to the fact that two of the defendants are physicians, that the procedure was performed at a medical clinic, and that Dr. Nagarwala “used commercially-sold medical tools and supplies,” including Valium, a “schedule VI controlled substance, federally regulated as a commercial product.”
"The comparison of FGM to healthcare is unsuitable. FGM is a form of physical assault, not anything approaching a healthcare service. The cases the government cites in this section of its brief dealt with abortion services and healthcare generally, which bear no resemblance to the crime of mutilating girls’ genitalia"
Though the Court termed the practise "despicable", it said that the accused cannot be convicted under the law, as it was void on account of lack of power for Congress to enact it.