Congress adopted a sweeping law more than two decades ago that outlawed female genital mutilation – the ancient practice that 200 million women in the world have undergone.
However, a federal court considering the first legal challenge to the statute found the law unconstitutional back in November 2018, which diminishes the chances of it being used by federal prosecutors around the country.
The ruling was issued by a federal judge in Michigan in a case that involved four parents and two doctors, among others, and they have been criminally charged last year with participating in the ritual or enabling it.
The families belong to a small Shiite Muslim sect, the Dawoodi Bohra, that originally comes from Western India.
The case was first brought under the 1996 law that criminalizes the act, and it has been closely followed by human rights advocates and communities where the procedure is still practiced.
Judge Bernard Friedman of the United States District Court for the Eastern District of Michigan ruled that Congress did not have the authority to pass the law against the procedure, and he dismissed key charges filed against the doctors, and removed four of the eight defendants.
He wrote that as laudable as the prohibition of a particular type of mistreatment of girls may be, prosecutors failed to show that the federal government had the authority to bring the charges and he noted that this is a state responsibility.
Judge Friedman wrote that federalism concerns deprive Congress of the power to enact this statute, and he added that Congress overstepped its bounds by legislating to prohibit FGM.
According to him, FGM is a local criminal activity which is for the states to regulate, and not Congress.
A spokeswoman for US Attorney Matthew Schneider in Detroit said that they are reviewing the Judge’s ruling and will make a determination on whether or not to appeal.
The lawyers of the defendants argued that the practice is a protected religious procedure, and more of a “ritual nick” that doesn’t remove the labia or clit, as some other forms of the procedure.
A former federal prosecutor and a law professor at Wayne State University Peter Henning said that the judge’s ruling appears to be solid and that even though 27 states have their own laws criminalizing the practice, other states would need to pass laws if they want to bring charges.