Editorial: If a federal ban on female genital mutilation is unconstitutional, all 50 states should ban the barbaric practice

Despite a worldwide campaign to stop the brutal practice of female genital cutting, it persists in communities across the globe, and especially in Africa and some Asian and Middle Eastern countries. Generally performed on girls under the age of 15, the procedure involves the removal of the female genitalia — a partial or total removal of the clitoris and sometimes the labia minora as well. In other instances, even the vaginal opening is narrowed.

This is not just some cultural ritual that Westerners can’t grasp but which deserves respect. It is, in fact, a mutilation of women’s bodies, often painful in the process. Its sole purpose is to take away a woman’s ability to experience sexual pleasure and safeguard her chastity until marriage. There is no health benefit to the procedure. On the contrary, it can leave girls and women bleeding in the short term, with various chronic infections, among other problems, in the long term. The procedure is banned in more than 40 countries, yet the World Health Organization and the United Nations Population Fund estimate that more than 200 million women and girls worldwide have undergone it.

Although it is often associated with Islam, genital cutting is also practiced among some Christian groups — and it actually predates the rise of either Islam or Christianity.

The United States has had a law on the books banning female genital mutilation since 1996; Congress even amended the law in the last several years to include a ban on taking girls out of the U.S. to get the procedure (“vacation cutting,” as it is known). But the law had never been tested until the arrest, last year, of Jumana Nagarwala, a Detroit hospital emergency room doctor, for performing the procedure on two 7-year-old girls in a clinic in Livonia, Mich., after hours. The girls were brought to the clinic from Minnesota by their parents. The parents, the doctor and several others were charged with a range of crimes, including transporting minors with intent to engage in criminal sexual activity. Eventually, authorities charged Nagarwala, who is a member of a small Muslim sect, with performing the procedure on nine girls. Nagarwala pleaded not guilty, contending that she performed a religious procedure that did not involve cutting the young girls’ genitals.

But the bulk of the case never got to trial. Late last month, a federal judge declared the federal law banning genital mutilation to be unconstitutional, saying that Congress had overstepped its authority in passing it in the first place. (Nagarwala still faces two conspiracy charges.) U.S. District Judge Bernard A. Friedman ruled that female genital mutilation was “local criminal activity” for the states to regulate, not a commercial activity that could be regulated by Congress. “As despicable as this practice may be, it is essentially assault,” he wrote.

In light of that ruling, states that have not already passed laws against female genital mutilation should do so immediately. At the moment, there are 27 states with such laws on the books. California is one of them.

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It’s difficult to know how much cutting goes on in the United States; relative to many other countries, the number of documented cases appears to be low. A handful of cases have made headlines in the last couple of decades. A posting on the FBI’s website suggests that the procedure is conducted by physicians, nurses and midwives as well as by female elders in immigrant communities. Researchers believe that the women and girls most at risk in the U.S. are immigrants — or the young daughters of immigrants — from those countries where a significant percentage of the female population has undergone this; a widely-cited report commissioned by the U.S. Centers for Disease Control concluded that 513,000 girls and women in the U.S. are at risk of or have already been subjected to the procedure.

Whatever the incidence of female genital mutilation in the U.S, it is a heinous practice that should be outlawed by every state in the union to keep its occurrence rare and to assure that authorities have a way to combat it.

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