Campaigners say ruling will affect tens of thousands of girls, and could turn the 23 US states that do not have anti-FGM laws into ‘destination states’ for cutting

A historic ruling that declared unconstitutional a US law banning female genital mutilation (FGM), and dropped key charges against practitioners was an “outrageous” blow to the rights of tens of thousands of girls at risk of the abuse, according to campaigners.

US law banning female genital mutilation declared unconstitutional Read more

US district judge Bernard Friedman, in Michigan, ruled on Tuesday that Congress lacked authority, under the commerce clause of the US constitution, to adopt the 1996 law and that the power to outlaw FGM lay with individual states. “As despicable as this practice may be, it is essentially a criminal assault,” Friedman wrote, in a ruling late on Tuesday. Congress had “overstepped its bounds by legislating to prohibit FGM”, as it had no demonstrated effect on interstate commerce, he said.

The decision, in the first federal case to involve FGM, dismissed the main charges in a case against Jumiana Nagarwala, a doctor who performed the procedure on nine girls, aged 7-13, from Michigan, Illinois and Minnesota at another doctor’s clinic in Livonia, on the outskirts of Detroit. The prosecution said she may have performed the procedure on as many as 100 girls. Four of the eight defendants, including three of the four mothers accused of subjecting their daughters to the procedure, were dismissed in the case. The defendants are members of a small Muslim Dawoodi Bohra community. The doctors faced lengthy prison sentences on conspiracy charges.

“While the rest of the world is moving forwards on FGM, the US is moving backwards,” Shelby Quast, American director of the international campaign group for women’s and girls’ rights, Equality Now, told the Guardian on Wednesday.

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A spokesman for the US attorney in Detroit said the government would review the ruling before deciding on whether to appeal.

FGM is a common practice among many northern and southern African countries, but it is banned or criminalised by at least 59 countries and several international treaties. It is considered a human rights violation by the World Health Organisation. It typically involves the partial or total removal of the clitoris and is used to control the sexuality of women and girls.

Campaigners said the ruling dealt a heavy blow to the rights of women and girls and could effectively turn the 23 US states that do not have anti-FGM laws into “destination states” for cutting.

They say it will affect tens of thousands of girls at risk of the abuse across the US. A study by the Centers for Disease Prevention and Control estimated that 513,000 women and girls across the US were at risk or have been subjected to FGM.

International campaign group Equality Now described the ruling as a “federal blessing” on FGM.

Quastsaid: “What it really shows is that girls are not being prioritised. I have had numerous calls from survivors’ groups with people in tears. The message to women and girls is that, when survivors are finally coming forward, sharing their stories, they are being completely disregarded…

While the rest of the world is moving forwards on FGM, the US is moving backwards.”

Facebook Twitter Pinterest Women and men marched in Manhattan for Women’s Rights. Photograph: David Grossman/Alamy Stock Photo/Alamy Stock Photo

Quast said she believes the decision would be appealed.

“This is at the lowest level of the federal court and I don’t believe it is a final decision. We expect the government will make the decision to appeal. This is a protection issue and requires the involvement of the federal authorities”

Anti-FGM advocacy groups Equality Now, WeSpeakOut, Sahiyo and Safe Hands for Girls have previously filed an amicus brief in support of the federal government.

Michigan passed a law to criminalise the practice in 2017, following the start of the case, but the law is not retrospective, and Nagarwala and others cannot be tried for past alleged offences.

Amanda Parker, senior director at the women’s rights organisation, AHA Foundation, said: “This is outrageous. It’s taken years for whistleblowers, police, FBI and attorneys to work together to bring this to court. Dropping the charge is a real blow to the human rights of women and girls in the United States.”

Parker said it could mean girls could be taken to states where FGM is not illegal.

“For example if a perpetrator risks life imprisonment in Minnesota, where FGM laws are in place, why would they not have girls trafficked across state lines to mutilate them? That’s exactly how we got here. The defendants in this case had the victims shipped from Minnesota to Michigan and the only way of holding them accountable for FGM was the federal statute.”

She said judges regularly prosecute assault and other forms of mutilation at the federal level, but “prosecuting those who cut little girls is not a priority for this court.”

Mariya Teher, an FGM survivor and co-founder and US executive director of campaigning group, Sahiyo, said she was shocked when she heard the judge’s decision, which she said would be twisted into a message by communities who practice it that FGM should continue.

She has described the practice as “gender and cultural violence”.

“There are people who are struggling to stand up to the pressure of family members, not to undergo this procedure. The judge referred to FGM as a “terrible crime”. But the technicality of jurisdiction will be ignored here and the message will be that its OK to continue with this practice.”