A judge just dismissed the most substantial of the charges against a medical doctor from Michigan who was accused of mutilating the genitals of more than 100 girls as part of a religious ritual.

We covered the case in September, when prosecutors identified even more young girls whose parents took them to get their genitals mutilated by Jumana Nagarwala. Prosecutors also charged her accomplices.

But now, because this was a federal court (and not a state one), a judge in Detroit has declared the federal law against female genital mutilation unconstitutional, opening the door for continued acts of faith-based barbarism, at least in states where there aren’t already prohibitions in place.

U.S. District Judge Bernard Friedman admitted the practice was “despicable” but added that Congress never had the authority to pass the ban the way it did by invoking the Commerce Clause. He wrote that “FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The commerce clause does not permit Congress to regulate a crime of this nature.”

So the charges were dismissed on that technicality but that doesn’t negate state laws already in place. Still, that means the most damning charges against Nagarwala have been tossed out.

The historic case involves minor girls from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show. The judge’s ruling also dismissed charges against three mothers, including two Minnesota women whom prosecutors said tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure. … “As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.” Currently, 27 states have laws that criminalize female genital mutilation, including Michigan, whose FGM law is stiffer than the federal statute, punishable by up to 15 years in prison, compared with five under federal law. Michigan’s FGM law was passed last year in the wake of the historic case and applies to both doctors who conduct the procedure, and parents who transport a child to have it done. The defendants in this case can’t be retroactively charged under the new law.

It’s possible this could be appealed to the Supreme Court, but as always, that’s a long shot. Other states need to put laws in place to ban the procedure while Congress could pass a similar law that doesn’t fail this judge’s technical considerations. 30 other countries have banned female genital mutilation. It’s a travesty that there are regions in the United States where that’s not the case.

None of this means Nagarwala is off the hook just yet. In a trial set to begin in spring of next year, she’ll still face two charges of conspiracy and obstruction. (The other six were wiped out with the judge’s ruling.) If guilty, she could still spend the next 50 years — the rest of her life, really — in jail.

At least then her potential victims would be safe.

