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Federal judge declares ban on female genital mutilation is unconstitutional

Ultimately, the fate of this law is likely to be decided by Brett Kavanaugh.

Ex-female genital mutilation (FGM) cutter Monika Cheptilak, who stopped practicing after the country set anti-FGM law in 2010, shows a homemade tool from a nail used for FGM, during the meeting of anti-FGM women group in Alakas village, bordering with Kenya, northeast Uganda on January 31, 2018.
The UN estimates that over 200 million girls and women have experienced FGM which is a life-threatening procedure that involves the partial or total removal of a woman's external genitalia. February 6, 2018, marks the 6th International Day of Zero Tolerance for FGM. / AFP PHOTO / Yasuyoshi CHIBA        (Photo credit should read YASUYOSHI CHIBA/AFP/Getty Images)
Ex-female genital mutilation (FGM) cutter Monika Cheptilak, who stopped practicing after the country set anti-FGM law in 2010, shows a homemade tool from a nail used for FGM, during the meeting of anti-FGM women group in Alakas village, bordering with Kenya, northeast Uganda on January 31, 2018. The UN estimates that over 200 million girls and women have experienced FGM which is a life-threatening procedure that involves the partial or total removal of a woman's external genitalia. February 6, 2018, marks the 6th International Day of Zero Tolerance for FGM. / AFP PHOTO / Yasuyoshi CHIBA (Photo credit should read YASUYOSHI CHIBA/AFP/Getty Images)

A federal judge held on Tuesday that it is unconstitutional for Congress to ban female genital mutilation, a practice in which the genitals of women and other gender minorities are intentionally damaged — often when the victims are very young, or even while they are children. In some cases, the clitoris is removed entirely.

Judge Bernard Friedman, a Reagan appointee, framed the case as a question of states’ rights. Mutilating a young woman’s genitals, according to Friedman, “is a crime that could be prosecuted under state law,” but is beyond the reach of the federal government. The case is United States v. Nagarwala.

In fairness to Judge Friedman, the federal ban on female genital mutilation is at the margins of Congress’ power. In United States v. Morrison, the Supreme Court struck a provision of the federal Violence Against Women Act. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” Chief Justice William Rehnquist wrote for the Court, in an opinion which established that Congress’ power to regulate the national economy is broad — but its power over non-economic matters is much narrower.

On the surface, the ban on such genital mutilation appears similar to the Violence Against Women Act — both, after all, are federal laws targeting sexual violence against women. But there are legally significant distinctions between the two laws, and Judge Friedman’s opinion gives one of the most important of those distinctions short shrift.

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The most important issue in Nagarwala is the scope of Congress’ constitutionally granted power to “regulate commerce . . . among the several states.” As the Supreme Court explained in Morrison, this power permits Congress to regulate (or ban outright) “those activities that substantially affect interstate commerce.” Thus, a crucial inquiry is just what “activity” does the ban on female genital mutilation seek to regulate.

Friedman answers this question narrowly, arguing that this law only regulates the mutilation of the genitals of young women and other gender minorities, and that there’s no evidence that female genital mutilation “itself has any effect on interstate commerce or that a market exists for FGM.”

That’s one way to look at the case, but the Justice Department offers a different, equally plausible view. Female genital mutilation is, at its heart, a form of surgery — or, as the government describes it, “an illegal form of healthcare.” Indeed, one of the criminal defendants in Nagarwala is a physician who performed this illegal procedure. Another is a second physician who allowed the procedure to be performed in his clinic.

Under DOJ’s view, the law regulates the act of providing health care by prohibiting health care providers of all kinds from performing a particular procedure. And there’s really no question that there is a market for health care, or that the activity that goes on in this market substantially affects interstate commerce.

Nagarwala is a hard case because there’s no principled way to decide how to characterize which “activity” the ban on female genital mutilation regulates. A conservative judge like Friedman can fairly characterize that “activity” narrowly, while a more liberal judge can fairly characterize it broadly.

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Yet Friedman errs in choosing a narrow framing because the Supreme Court has already instructed him on how to resolve such uncertainty. “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds,” the Court explained in Morrison. 

Federal laws come to the courts with a “presumption of constitutionality.” Ties should be resolved in favor of judicial restraint.

It’s likely that Nagarwala will ultimately be decided by the Supreme Court. Federal judges tend to vote along ideological lines in cases involving the scope of the Commerce Clause, and Friedman’s opinion will appeal to the United States Court of Appeals for the Sixth Circuit, which is absolutely dominated by Republican appointees.

So the Sixth Circuit is likely to agree with Friedman, and the Supreme Court typically agrees to hear cases where a federal appeals court struck down an Act of Congress.

Nagarwala, in other words, is likely to be the Court’s first word on the Commerce Clause since Trump-appointees Neil Gorsuch and Brett Kavanaugh were given votes on the nation’s highest Court. And, if past is prologue, it is likely that the Court will vote 5-4 to agree with Friedman’s decision.

In the process, they could potentially unravel the presumption of constitutionality that a more moderately conservative Supreme Court spoke of in Morrison. If they do, that could signal their intention to unravel much of federal law.