Judge Bernard A. Friedman, a Senior Judge for the Eastern District of Michigan ruled on Tuesday that the US ban on Female Genital Mutilation, passed by Congress in 1996 and signed into law by President Clinton, was unconstitutional.
His rationale was that the original ban constituted Federal overreach, as the international human rights treaty that was used as a reason for the ban did not in any way reference either this specific type of assault nor physical assaults in general; and that “federalism concerns deprive Congress of the power to enact this statute.”
He could not find justification for the act within the Commerce clause, which was argued, in addition to the treaty, to give authorization to the ban.
According to National Review:
While the judge’s ruling entirely clears four defendants in the case, including three mothers who allegedly handed their underage daughters over to Nagarwala to be mutilated, the remaining defendants still face obstruction charges.
In response to the possibility of the case being overturned, the Governor of Michigan signed a law against FGM in 2015. Because the law did not include provisions for retroactive prosecution, the defendants are not able to be charged for violating the state law.
Judge Friedman was previously most notable for being the man who issued the 2015 ruling overturning Michigan’s ban on same-sex marriages, which was upheld by the Supreme Court. In that case, he found that the state had violated their due process and equal protection rights.
Judge Friedman was appointed by Ronald Reagan.