By Dean M. Harris, J.D., Associate Professor, Department of Health Policy and Management, Gillings School of Global Public Health, University of North Carolina at Chapel Hill, USA, Dean_Harris unc.edu

            As of 2012, over 500,000 girls and women in the U.S. were estimated to be at risk of FGM or the consequences of FGM.[1] However, on November 20, 2018, the U.S. District Court for the Eastern District of Michigan held that the U.S. government does not have authority to prohibit FGM of children. According to the court in U.S. v. Nagarwala,[2] the International Covenant on Civil and Political Rights (ICCPR) does not provide a legal basis to support the U.S. government’s attempt to prohibit FGM of children within the United States.   

            The authority of the U.S. government is subject to limitations in the U.S. Constitution. Some laws that may be adopted and enforced by state governments in the U.S. may not be adopted and enforced by the federal government. In Nagarwala, the court held that the U.S. Constitution does not provide authority for the federal government to prohibit FGM of children, and neither does the ICCPR. The court recognized that state governments in the U.S. may prohibit FGM within their states. However, only about half of the 50 U.S. states have adopted such laws, and there was no state law in effect at the time of the alleged conduct in this case.

            This blog post describes the problem of FGM as an issue of global public health. It analyzes the U.S. statute that prohibits FGM of children, the government’s criminal case in Nagarwala, and the relationship between the ICCPR and prohibition of FGM. The blog post concludes by explaining the next steps in Nagarwala and discussing some ways to address the problem of FGM.       

The global health problem of FGM

                It is estimated that at least 100 million women and girls around the world have been subjected to genital mutilation, and 3 million girls every year are at risk of being subjected to FGM.[3] Types of FGM include excision, clitoridectomy, infibulation, and other procedures. FGM has no medical benefits and it causes severe harm, extreme pain, and sometimes death. Often, FGM is performed on young girls at the request of a parent or other family member, in which case there is no practical way for the child to refuse the procedure and no valid informed consent.

                Ten UN agencies, including the World Health Organization and the Office of the High Commissioner for Human Rights, declared FGM to be a violation of human rights and expressed their commitment to eliminate the practice.[4] According to the UN Population Fund (UNFPA), “Female genital mutilation (FGM) is internationally recognized as a human rights violation.”[5]

                The practice of FGM is most common in parts of the Middle East and Africa.  Because of travel and immigration, health care professionals and health facilities in Western countries have been facing new ethical issues in serving a more diverse patient population.[6]

The U.S. federal statute that prohibits FGM of children

              The U.S. Congress enacted a federal statute in 1996, as part of a lengthy immigration law.[7] This federal statute (the “Act” or the “FGM Act”) imposes criminal penalties of fines and imprisonment for up to five years for anyone who “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 ….”[8] The Act does not apply to performing FGM procedures on persons more than eighteen years old. Moreover, the Act provides exceptions for necessary medical procedures that meet specific conditions.[9]

               In 2013, the Act was amended by adding a new subsection, in an attempt to protect children who might be subjected to FGM during vacation trips to a family’s country of origin.[10] The new subsection imposes the same criminal penalties on any person who “knowingly transports” or attempts to transport a person from the U.S. for the purpose of any conduct that would violate the Act if it were performed within U.S. territory.[11] Although the statute was enacted in 1996, the Nagarwala case is the first prosecution that was filed under the Act.[12]

The U.S. government’s case against Dr. Nagarwala and seven other defendants              

             Dr. Jumana Nagarwala is a physician who practiced emergency medicine at a hospital in Detroit, Michigan. She was born in the U.S. and is a U.S. citizen. She is a member of the Dawoodi Bohra, which is a Shiite Muslim community based in India. There is conflicting information on whether leaders of the Dawoodi Bohra support or oppose the practice of FGM.[13]

              On April 12, 2017, federal officials arrested Dr. Nagarwala at Detroit airport, while she was trying to fly to Kenya. According to prosecutors, Dr. Nagarwala performed FGM on girls at a clinic in Michigan. She denied the charges of performing FGM, and claimed that she was only performing a non-harmful religious procedure. Prosecutors also filed charges against several other defendants who allegedly provided the clinic for FGM procedures, assisted or were present during the procedures, encouraged people to mislead the government investigators, or brought their daughters to the clinic for FGM.[14] Later, prosecutors added other charges including additional victims and a new charge against Dr. Nagarwala of “conspiracy to travel with intent to engage in illicit sexual conduct.”[15] Four of the defendants were charged with conspiring to obstruct the proceeding.[16] The obstruction charges are apparently based on allegations that some defendants told potential witnesses to mislead investigators and “deny everything.”[17]

               After publicity about this federal case, the state legislature in Michigan adopted its own statute to prohibit FGM.[18] However, the state statute did not become effective until October 9, 2017, and it does not apply to the events that are the subject of the federal case.[19]

The defendants’ motion to dismiss six charges in the federal case

               Defendants made a motion to dismiss six charges (“counts”) including committing FGM, conspiring to commit FGM, and aiding other people in committing FGM. A motion to dismiss is a procedural mechanism to test the legal sufficiency of allegations, before conducting a trial to resolve the factual issues in a case. In Nagarwala, defendants argued as a matter of law that the U.S. Congress did not have authority under the U.S. Constitution to adopt the FGM Act, and, therefore, the Act is unconstitutional.

               The federal government, including Congress, only has the powers which are set forth in the Constitution. State governments in the U.S. have a broad “police power” to do what is necessary to protect the public health, safety, and welfare, but the federal government does not have “police power.” Thus, federal laws enacted by Congress must be based on a specific power that was granted to Congress in the Constitution, such as the power to regulate commerce between different states, which is commonly referred to as “interstate commerce.”[20] The Constitution also gives Congress the power to make laws that are “necessary and proper” for execution of the other powers that were granted to the federal government by the Constitution.[21]

               In Nagarwala, prosecutors argued that prohibiting FGM is within the power of Congress to regulate interstate commerce, but the court rejected that argument. The court acknowledged that FGM may be “despicable.” However, the court concluded that FGM is not a commercial activity or economic activity and held that FGM does not substantially affect interstate commerce. According to the court, “There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce.”[22]  

               Aside from interstate commerce, the prosecutors only relied on one other basis to argue that Congress had authority to prohibit FGM. Prosecutors argued that Congress had the authority to prohibit FGM under the Constitution’s “necessary and proper” clause. According to prosecutors, prohibiting FGM is rationally related to implementing another constitutional power of the federal government, which in this case is the power to make treaties with other nations. Prosecutors argued that the FGM Act is rationally related to the ICCPR, which the U.S. government ratified in 1992. However, the court rejected that argument as well. The court held that the ICCPR does not provide authority for Congress to prohibit FGM.

The ICCPR and the prohibition of FGM

               The ICCPR was adopted by the UN General Assembly and has been ratified by 172 states (i.e. nations).[23] It is an international human rights treaty which imposes legally binding obligations on states that ratify it. International human rights agreements contain both positive and negative rights. Positive rights refers to the entitlement of individuals to receive specific benefits from the state or society, such as the right to an adequate standard of living including food, housing, health care, and social security.[24] Negative rights refers to the protection of individuals from interference or oppression by the state, such as prohibiting arbitrary arrest, torture, and interference with the freedom of religion or freedom of speech.[25]

               According to the UN’s Office of the High Commissioner for Human Rights (OHCHR), states have both positive and negative obligations.[26] “States assume obligations and duties under international law to respect, to protect and to fulfil human rights.”[27] Respecting human rights is the negative obligation of states not to take action that would deprive people of their human rights.[28] Protecting human rights and fulfilling human rights are the positive obligations of states to protect people against abuses of human rights by persons other than the state, and to take affirmative steps to enable people to have the benefit of human rights.[29]               

             However, the U.S. government generally takes a much more limited view of human rights. The U.S. government usually supports the concept of negative rights which prevent government interference in the lives of individuals, but it usually rejects the concept of positive rights which would obligate a government to protect individuals from third parties or spend money to help individuals in need. At the national level, the U.S. Constitution only provides negative rights, in the sense that government cannot do bad things to you, but government is not required to do good things for you.[30]  The U.S. Supreme Court held that the Constitution does not require government to provide services, even if a person would die without the services.[31] Agents of the government may not harm people, but those agents are not required by the Constitution to stop private parties from harming people.

             The U.S. government generally takes the same approach to international human rights agreements. Sometimes, the U.S. simply refuses to ratify an international agreement. The U.S. has not ratified the International Covenant on Economic, Social and Cultural Rights, and the US is the only UN member that refuses to ratify the Convention on the Rights of the Child.

             In other situations, the U.S. ratified agreements but imposed reservations or other limits on ratification. The process for ratification allows states to exempt themselves from specific requirements, by ratifying with conditions. The method for imposing conditions on ratification is called “reservations, understandings, and declarations” (“RUDS”). Also, the U.S. might insist that a human rights treaty is not self-executing and requires an implementing domestic law, and the U.S. might insist that its domestic law already meets all the requirements of a treaty.[32]

            The U.S. ratified the ICCPR in 1992. However, the U.S. has not ratified the ICCPR’s First Optional Protocol which allows private parties to file complaints against states, nor has the U.S. ratified the ICCPR’s Second Optional Protocol which prohibits the death penalty. Moreover, the U.S. imposed several limitations on ratification of the ICCPR, by means of five reservations, five understandings, and three declarations.[33] The fifth understanding imposed by the U.S. provided that the federal government would only implement the ICCPR to the extent that it had jurisdiction to do so within the U.S. system of federalism.

            “[T]he United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfilment of the Covenant."[34]

            In Nagarwala, the court relied in part on federalism in holding that the ICCPR does not provide a basis for Congress to enact a federal statute prohibiting FGM. The U.S. President has the power to make treaties, subject to the advice and consent of the Senate. Congress has the power, under the Constitution’s “necessary and proper clause,” to enact a statute for the purpose of implementing a treaty, if the statute is rationally related to the treaty. However, a treaty between the U.S. and foreign nations may not give Congress more power than it already has in the Constitution and may not change the fundamental relationship between the federal and state governments in which state governments have police power over local criminal acts.[35]

             Aside from the issue of federalism, the court in Nagarwala concluded that the FGM Act was not rationally related to the ICCPR. Prosecutors tried to rely on Article 3 of the ICCPR in which states “undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”[36] However, the court concluded that the FGM Act “does not effectuate the purposes” of Article 3, and, therefore, there is no rational relationship between the Act and Article 3.[37]

             Prosecutors also tried to rely on Article 24 of the ICCPR, which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”[38] The court recognized that Article 24 is “arguably” related to the FGM Act more closely than Article 3, but nevertheless, the court held that Article 24 is not rationally related to the FGM Act. According to the court, “[a]s laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis.”[39]

            To the contrary, there are strong arguments that Article 24 is rationally related to the FGM Act. Article 24 contains elements of both negative rights and positive rights. As a negative right, it prohibits government from discriminating against individuals on the basis of sex or other grounds. As a positive right, it entitles individuals to “such measures of protection as are required by … status as a minor….” In Nagarwala, the court took a very limited approach of emphasizing the negative right, when it described Article 24 as “an antidiscrimination provision, which calls for the protection of minors without regard to their race, color, sex, or other characteristics.”[40] Under the court’s limited approach, a government could meet its obligations under Article 24 merely by adopting a facially neutral law to prohibit discrimination against all children, and then taking no action whatsoever to actually provide protection to any children or group of children. That is not a reasonable interpretation of Article 24.

             In addition, the court apparently thought that a specific law which protects one group of people against one identified risk of harm is inconsistent with—and therefore not rationally related to—a general prohibition against discrimination. The court stated that the goal of Article 24 was “protecting children on a nondiscriminatory basis,” and concluded that this goal is not promoted by “the prohibition of a particular type of abuse of girls.”[41] The court’s analysis is not correct. A general obligation to protect people from harm without discrimination does not preclude a government from enacting additional protections for identifiable groups that are subject to specific risks of harm. Those additional protections for specific groups are rationally related to the general obligation.

            Assume that a government has a legal obligation to ensure that all children, without discrimination, have enough food to eat. Assume further that the government has established a specific program to provide free food for poor children. The government is not required to also provide equal quantities of free food to children from wealthy families. The specific program to assist an identifiable group is consistent with—and rationally related to—the general obligation to ensure that all children, without discrimination, have enough food to eat.

            In Nagarwala, the court would have reached the same result even if it had found the FGM Act to be rationally related to Article 24, because of concerns about federalism. Nevertheless, it is important to clarify the relationship between Article 24 and the legal prohibitions of FGM. When the U.S. ratified the ICCPR subject to its fifth understanding, the federal government undertook an obligation to take appropriate steps to assist state and local governments to fulfil those duties under the ICCPR that are not within the jurisdiction of the federal government. Understanding number five uses the mandatory term “shall” for the role of the federal government in these circumstances, rather than a permissive term such as “may.”[42] If the court is correct that prohibiting FGM is only within the jurisdiction of state and local governments, the federal government still has the obligation to take appropriate measures to assist those state and local governments in preventing and punishing FGM. In the U.S. system, of federalism those measures would probably take the form of federal funding for state and local governments, pursuant to the federal government’s conditional spending power.[43]

What will happen next and what can be done to prevent FGM?              

               After the federal district court issued its Order on November 20, 2018, the U.S. government filed a notice of appeal. It will take several months before a decision is issued by the appellate court. In addition, the Order of the district court left some charges in effect against some defendants, such as conspiring to obstruct the proceeding. Dr. Nagarwala was also charged with “conspiracy to travel with intent to engage in illicit sexual conduct,” but she has moved to dismiss that charge. Since January 17, 2019, proceedings in the district court have been put on hold (“stayed”) pending the appeal, except for matters involving pretrial release of defendants. 

               Although the Michigan state law prohibiting FGM was not in effect at the time of the events in this case, the state government has authority over licensing of doctors. Depending on the wording of applicable state laws, the state licensing body in Michigan could consider whether there are grounds to suspend or revoke Dr. Nagarwala’s license. As of January 27, 2019, Dr. Nagarwala was still licensed to practice medicine by the State of Michigan, and the state’s licensing website shows no open formal complaint or disciplinary action.[44]   

               In a broader perspective, what steps can be taken to prevent the performance of FGM on children? About half the states in the U.S. do not have laws against FGM, and those states should adopt such laws immediately. In addition, state and local governments should take action to discourage FGM and publicize its physical and psychological harms. This requires coordinated efforts by public health authorities, state and local law enforcement, and civil society organizations. Within immigrant communities, religious and secular leaders should speak out against FGM explicitly and forcefully. They should make it clear that religious belief and cultural traditions do not require or justify FGM. Finally, the U.S. Congress should use its conditional spending power to provide federal funds for state governments that adopt laws which prohibit FGM and take effective steps to prevent it.   

    

[1] Goldberg, H, et al, “Female Genital Mutilation/Cutting in the United States: Updated Estimates of Women and Girls at Risk, 2012,” Public Health Reports, (March-April 2016), 131:1-8, https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/fgmutilation.pdf

[2] U.S. v. Nagarwala, Opinion and Order, (Eastern District of Michigan, Nov. 20, 2018),<https://assets.documentcloud.org/documents/5205056/US-v-Nagarwala-Dismiss-11-20-18.pdf>                     

[3] WHO, “Eliminating female genital mutilation: an Interagency statement,” (2008), 1, http://whqlibdoc.who.int/publications/2008/9789241596442_eng.pdf

[4]  Id. at 1-2, 8-10.

[5] https://www.unfpa.org/events/international-day-zero-tolerance-female-genital-mutilation#

[6] Harris, Dean, Ethics in Health Services and Policy: A Global Approach, (Jossey-Bass/John Wiley & Sons, Inc., San Francisco, CA, 2011) 1-287, at 85-103.

[7] Public Law 104-208, §645 (1996), 110 Stat 3009-709, codified at 18 U.S. Code §116. See also Harris, supra note 6, at 97.

[8] 18 U.S.C. §116(a).

[9] 18 U.S.C. §116(b). 

[10] Harris, supra note 6, at 89.

[11] Public Law 112-239, §1088 (2013), codified at 18 U.S.C. §116(d).

[12] U.S. v. Nagarwala, supra note 2, at 21. See also Cuevas, M, “Michigan doctors charged in first federal genital mutilation case in US,” CNN (April 24, 2017), https://www.cnn.com/2017/04/22/health/detroit-genital-mutilation-charges/index.html

[13] Snell, R, “Lawyer: Doctor was doing religious procedure, not harm,” The Detroit News, (April 17, 2017), https://www.detroitnews.com/story/news/local/detroit-city/2017/04/17/female-genital-mutilation-doctor/100563870/ ; Fortin, J, “Michigan Doctor is Accused of Genital Cutting of 2 Girls,” New York Times, (April 13, 2017),  https://www.nytimes.com/2017/04/13/us/michigan-doctor-fgm-cutting.html ; Partridge, E, “First person to be imprisoned over female genital mutilation in Australia,” Sydney Morning Herald, (June 14, 2016), https://www.smh.com.au/national/nsw/first-person-to-be-imprisoned-over-female-genital-mutilation-in-australia-20160609-gpfm5i.html

[14] U.S. v. Nagarwala, supra note 2, at 1-2. See also Cuevas, supra note 12; Snell, supra note 13; Belluck, P, “Michigan Case Adds U.S. Dimension to Debate on Genital Mutilation,” New York Times, (June 10, 2017), <https://www.nytimes.com/2017/06/10/health/genital-mutilation-muslim-dawoodi-bohra- michigan-case.html>

[15] U.S. v. Nagarwala, supra note 2, at 2-3.

[16] Id. at 3.

[17] Belluck, supra note 14; Snell, supra note 13.

[18] Snell, R, “Doctor in genital mutilation case attacks remaining charge,” Detroit News, (November 29, 2018),  https://www.detroitnews.com/story/news/local/detroit-city/2018/11/29/jumana-nagarwala-attacks-genital-mutilation-case/2150203002/ ;McVeigh, K, “‘US is moving backwards’: female genital mutilation ruling a blow to girls at risk,” The Guardian, (November 22, 2018),  https://www.theguardian.com/society/2018/nov/22/us-is-moving-backwards-female-genital-mutilation-ruling-a-blow-to-girls-at-risk

[19] MCL 750.136, http://legislature.mi.gov/doc.aspx?mcl-750-136; see also McVeigh, supra note 18.

[20] U.S. Constitution, Article I, Section 8, https://www.law.cornell.edu/constitution

[21] Id.

[22] U.S. v. Nagarwala, supra note 2, at 27.    

[23] https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[24]  See Universal Declaration of Human Rights, Articles 22 and 25, https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[25] See id. at Articles 5, 9, 18, and 19.

[26] https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx

[27] Id.

[28] Id.

[29] Id.

[30] Harris, Dean, Contemporary Issues in Healthcare Law & Ethics (Fourth Edition), (Chicago, Health Administration Press, 2014), 261.

[31] DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989).

[32] Roth, K, “The Charade of US Ratification of International Human Rights Treaties”, Chicago Journal of International Law, (2000), 1(2) (Article 14):347-353, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1102&context=cjil

[33] http://indicators.ohchr.org/ 

[34] Id.

[35] U.S. v. Nagarwala, supra note 2, at 6-10.  

[36] https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[37] U.S. v. Nagarwala, supra note 2, at 6 and 26.

[38] https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[39] U.S. v. Nagarwala, supra note 2, at 6.

[40] Id.

[41] Id.

[42] http://indicators.ohchr.org/

[43] See Harris, supra note 30, at 68. 

[44]https://w2.lara.state.mi.us/VAL/License/Details/785201