“Given how this statute is written I think he’s correct,” Professor Henning said. “I hate to say Congress whiffed, but they whiffed on this law. There isn’t a federal police power, so they can’t just adopt anything they want. It has to be located in one of Congress’s express powers and this wasn’t.”
Advocates fighting to end female genital cutting were dismayed by the ruling. Shelby Quast said her group, Equality Now, is urging federal prosecutors to appeal the decision. “We are confident that Congress had the authority to pass this FGM law,” she said.
Mariya Taher, a co-founder of Sahiyo, a group representing members of the Dawoodi Bohra sect who oppose cutting, said she appreciated that the ruling was not condoning female genital mutilation and that states still have options to bring cases. But she added that she is concerned about the message those who believe in cutting might draw from the decision.
“Is this something that proponents will use as a reason to say that ‘what we do isn’t harmful,’ almost giving them permission to do this?” she wondered. “The U.S. is looked to as a leader, so this could definitely have repercussions globally.”
In the Michigan case, Dr. Jumana Nagarwala, an emergency medicine physician and a member of the Dawoodi Bohra sect, is accused of cutting the genitals of nine girls. Dr. Fakhruddin Attar, an internist, is accused of letting Dr. Nagarwala use his now-closed Burhani Medical Clinic in Livonia, a Detroit suburb. His wife, Farida Attar, the clinic’s office manager, and another woman, Tahera Shafiq, were accused of assisting the doctors.
Judge Friedman dismissed charges against Ms. Shafiq, as well as mothers of two girls from Minnesota and one girl from Michigan. Dr. Nagarwala, the Attars and a fourth mother remain charged with conspiracy to obstruct an official proceeding. Dr. Nagarwala is also charged with conspiracy to travel with intent to engage in illicit sexual conduct.
Molly Blythe, a lawyer for Dr. Nagarwala, said Wednesday that while pleased with the ruling, Dr. Nagarwala remains under home confinement and still has to face the other charges, which could carry a sentence of years in federal prison.