DETROIT (WJBK) - A federal judge has dismissed six charges of female genital mutilation against a doctor, declaring the nation's female genital mutilation law as unconstitutional.
The federal judge in Detroit ruled in the historic case on Tuesday, ruling the law that prevents female genital mutilation (FGM) is unconstitutional. U.S. District Judge Bernard Friedman ruled that congress does not have the authority to make FGM illegal, which it had been classified as illegal under the Necessary and Proper Clause or the Commerce Clause.
The case involved Dr. Jumana Nagarwala who had been awaiting trial on female genital mutilation charges. She was arrested in the summer of 2017 and was released on a $4.5 million bond.
According to the opinion filed by Friedman, congress had banned FGM under a statute that states "whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both."
Prosecutors said she did that with at least six girls at a clinic in the Detroit area, including two girls from Minnesota. The doctor denies that she committed a crime and says she performed a religious custom from her Muslim sect, the India-based Dawoodi Bohra.
"My client is elated, I think she is overwhelmed at the moment," said attorney Shannon Smith. "But, the way Congress enacted this law and the way they chose to word it, was unconstitutional."
Smith said her client was innocent, adding the win is a huge success but bittersweet.
"My client would love to be exonerated for what she did and did not do and this ruling kind of (pulls) the rug out from under us."
"The procedure my client does, the religious nick, is the foreskin on a girl, or the clitteral hood - the law did not prohibit that."
The doctor, through her attorneys, argued that the law that the federal government had been using to charge her was passed through Congress without proper vetting.
Her attorneys argued that the act of FGM had no bearing on commerce, which judge Friedman agreed with in his opinion:
"That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. The government has not shown that either prong is met."
Two other people, Dr. Fakhruddin Attar and Farida Attar, have been charged in this case, the first U.S. case of its kind.
The government says the alleged acts occurred at Dr. Attar's clinic with his approval. Farida Attar is accused of assisting Nagarwala.
Nagarwala said she performed a religious custom on girls from her Muslim sect, the India-based Dawoodi Bohra.
She still faces conspiracy to travel with intent to engage in illicit sexual conduct and obstruction charges. Others in the case face obstruction charges.
---The Associated Press contributed to this report.