Should female genital mutilation be illegal under federal law? It had been until last December.
A 1996 law criminalized female genital mutilation for any girl under age 18. Two exceptions had been granted under the law: genital mutilation done out of medical necessity, and if a girl is in labor or has just given birth.
But in December 2018, Michigan federal judge Bernard Friedman ruled the law unconstitutional, saying Congress did not have the power to make such a national law and it was the proper domain of states. The case came after a Livonia, Michigan physician named Dr. Jumana Nagarwala performed female genital mutilation in violation of the 1996 law.
President Trump’s Solicitor General Noel Francisco, essentially the person responsible for arguing the federal government’s position in court cases, decided in April that he and the Justice Department would not appeal the judge’s ruling, suggesting the judge’s decision was unlikely to be overturned by a higher court.
However, Francisco urged Congress to amend the law legislatively, suggesting six specific provisions that could be included in the legislative text that would hopefully allow it to pass judicial review.
What the legislation does
The Federal Prohibition of Female Genital Mutilation Act would once again ban the practice for girls under age 18, now including the six specific provisions recommended by the Justice Department.
The judge had struck down the ban as unconstitutional because he said Congress can only regulate things that affect interstate commerce — otherwise it’s the domain of the states. So the bill adds six provisions explicitly related to interstate commerce.
The House version was introduced on June 27 as bill number H.R. 3583, by Rep. Scott Perry (R-PA10). The Senate version was introduced the same day as bill number S. 2017, by Sen. Marsha Blackburn (R-TN).
What supporters say
Supporters argue the practice is barbaric and has no place in an advanced society.
“Over 200 million little girls are at risk of being subjected to this horrific practice worldwide, with over a half million right here in the United States — heartbreaking statistics by any measure,” Rep. Perry said in a press release. “We must be abundantly clear that this cultural practice has no medical benefit and won’t be tolerated in the United States of America.”
“Perpetrators of FGM [female genital mutiliation] must be held responsible for their grotesque actions — even after they cross state lines,” Sen. Blackburn said in a separate press release. “No woman or girl should have to watch her abuser go unpunished. This legislation closes a crucial loophole and introduces six circumstances under which the practice is considered a federal crime.”
What opponents say
Judge Friedman, in striking down the prior 1996 legislation as unconstitutional, didn’t specifically rule on its policy merits. However, he did explain why he felt the practice was not Congress’s domain to regulate.
“Congress overstepped its bounds by legislating to prohibit FGM [female genital mutiliation,” Judge Friedman wrote in his 28-page ruling. “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.”
“Therefore, even accepting the government’s contention that the criminal punishment of FGM is rationally related to the cited articles of the ICCPR [International Covenant on Civil and Political Rights], federalism concerns and the Supreme Court’s statements regarding state sovereignty in the area of punishing crime — and the federal government’s lack of a general police power — prevent Congress from criminalizing FGM.”
Odds of passage
The House version has attracted eight cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee.
The Senate version has attracted five cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee.
Although no congressional Democrats yet cosponsor the legislation, a nonbinding House resolution which decried female genital mutilation as a human rights violation passed unanimously 393–0 in May.