Tresa Baldas, Detroit Free Press, September 19, 2019

Activists fighting to end female genital mutilation worldwide are reeling at the latest decision involving Detroit’s FGM case, in which a doctor is charged with cutting the genitals of nine 7-year-old girls who cried and bled as another woman held them down.

The historic case has had a series of setbacks.

First, a federal judge in Detroit declared the nation’s FGM law unconstitutional.

Then the Department of Justice said it wouldn’t appeal, concluding the 1996 FGM statute was too weak to defend.

Congress tried to intervene and fight for the law, but got shot down.

On Friday, the U.S. Sixth Circuit Court of Appeals denied a motion by congressional leaders to defend the constitutionality of the FGM ban. It also granted the government’s and the defendant’s request to voluntarily dismiss the case.

Shannon Smith, attorney for the lead defendant in the case, Dr. Jumana Nagarwala, said the appeals court got it right.

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The Sixth Circuit decision, however, devastated anti-FGM activists, who fear people who support genital cutting practices on religious grounds will still get away with it in the U.S. The defendants in the Michigan case are all members of a small Indian Muslim sect known as the Dawoodi Bohra, who practice female circumcision and view it as a religious rite of passage, alleging it involves only a minor “nick.”

“We are deeply concerned that this decision puts girls at risk as the lack of a federal ban leaves an inter-state loophole and creates confusion among law enforcement charged with protecting girls from this practice,” the US END FGM/C NETWORK said in a statement Wednesday. “The decision is also discouraging to anti-FGM/C advocates, including survivors, who have been bravely speaking out against this practice, and dismantles education and prevention efforts in the U.S. and across the globe.”

In striking down the genital mutilation statute, the courts have held that the law is unconstitutional because it doesn’t affect interstate commerce.

Anti-FGM activists disagree, noting the Michigan case involves girls from Illinois and Minnesota who traveled to Michigan to undergo genital cutting procedures in a Livonia clinic.

“With evidence of girls being taken across state lines to have this procedure done, we believe that FGM/C is indeed a federal issue and that it is our government’s responsibility to defend against it,” the US End FGM/C Network said.

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The Detroit case involves two Michigan doctors and six others who are charged with subjecting nine minor girls from Michigan, Illinois and Minnesota to genital cutting procedures during after hours at a Livonia clinic. According to court records, some of the girls cried, screamed and bled during the procedures; one girl was given ground Valium in liquid Tylenol to keep her calm.

The defense has long argued that the procedures were benign and did not involve any actual cutting, only a scraping of the genitals.

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Prosecutors adamantly disagree, arguing Nagarwala subjected as many as 100 minor girls to female genital mutilation procedures over the last decade, including one girl who screamed, “could barely walk after the procedure, and said that she felt pain all the way down to her ankle.” Another girl said that she was “pinched” in the genital area, that it “hurted a lot” and that there was “pain and burning.”

Both girls were told to keep the procedures a secret, prosecutors wrote in court records.

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Currently, 31 states have laws that criminalize female genital mutilation, including Michigan, which passed its FGM law 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 state law.