Eliminating Female Genital Mutilation After Nagarwala
*By Jordan T. Leonard
According to the United Nations International Children’s Emergency Fund (“UNICEF”), Female Genital Mutilation (“FGM”), is practiced primarily in Africa, the Middle-East, and parts of Southeast Asia, such as Indonesia. However, FGM is a world-wide problem and UNICEF suggests FGM is also practiced in “Colombia (South America), India (Asia)” and other countries in the Middle East. More than two-hundred-million girls and women have been affected by FGM.
FGM includes “‘all procedures involving partial or total removal of the female external genitalia or other injury to the female genital organs for non-medical reasons.’” The World Health Organization (“WHO”) groups FGM into four categories. The first category involves “[p]artial or total removal of the clitoris and/or the prepuce.” The second category involves “[p]artial or total removal of the clitoris and labia minora, with or without excision of the labia majora.” The third category involves the “[n]arrowing of the vaginal orifice by cutting and bringing together the labia minora and/or the labia majora to create a type of seal, with or without excision of the clitoris. In most instances, the cut edges of the labia are stitched together, which is referred to as ‘infibulation.’” The fourth category more broadly includes “[a]ll other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterization.”
The practice of FGM has been condemned by the international community through multiple treaties and conventions. UNICEF argues Article 25 of the Universal Declaration of Human Rights prohibits FGM because it “violates the right to health and bodily integrity.” UNICEF also argues that FGM can violate the United Nations Convention on the Elimination of All forms of Discrimination against Women, if FGM is understood “as a form of violence against women.” Similarly, UNICEF argues FGM could possibly be defined as torture, thus violating the Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Last, UNICEF argues FGM violates the Convention on the Rights of the Child “since FGM is regarded as a traditional practice prejudicial to the health of children and is, in most cases, performed on minors.”
UNICEF’s list, however, may not be complete. For example, the International Covenant on Civil and Political Rights (“ICCPR”), which the United States is a party to, contains language which arguably obliges the United States to ban FGM. The ICCPR and FGM have recently been thrust into the lime light due to a recent decision by the Eastern District of Michigan titled United States v. Nagarwala (“Nagarwala”).
At issue in Nagarwala was 18 U.S.C. § 116 (“the statute”), a federal law which banned FGM. According to the decision, Congress enacted the statute in pursuance of Articles 3 and 24 of the ICCPR. Article 3 reads “[t]he States Parties to the present Covenant 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.” Article 24 reads:
[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. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.
Based on this language, Congress enacted the statute, which reads in part “ . . . .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. . . .” Congress found it had the authority to enact the statute under its Article I powers, Section 5 of the Fourteenth Amendment, and the treaty clause of the Constitution.
Specifically, Congress made five findings justifying this conclusion:
(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States; (2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved; (3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional; (4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control; (5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law. . .
The Congressional findings seem to focus on religious freedom concerns. The first and fifth findings show Congress understood FGM could potentially implicate religious freedom but found that this particular law did not infringe on the Free Exercise Clause. This finding is important because, as a general matter, heightened scrutiny is not triggered under the Free Exercise Clause if a law is neutral and generally applicable. Therefore, so long as the law is truly neutral and generally applicable it should pass muster for Free Exercise considerations.
However, the statute still must be justified under Congress’ enumerated powers. Congress cited its authority under the treaty clause, Article I, and Section 5 of the Fourteenth Amendment. The Nagarwala Court found the treaty clause justification did not pass Constitutional muster for two reasons. First, the court found the statute prohibiting FGM was not closely related to the language of Articles 3 and 24 of the ICCPR. It opined “[t]here is simply no rational relationship between Article 3 and the FGM statute. The latter does not effectuate the purposes of the former in any way.” Further, the court found the link between Article 24 and the statute weak—
Article 24 is an anti-discrimination provision, which calls for the protection of minors without regard to their race, color, sex, or other characteristics. As 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.
Nonetheless, the Nagarwala Court reasoned the statute would be unconstitutional, even if the statute was closely related to the treaty, because it violates federalism principles. 
Here, the court looked to the Senate’s understanding of the ICCPR, and to precedent of the Supreme Court. First, the Nagarwala Court found the Senate’s understanding was that the ICCPR would be implemented in line with American concepts of federalism—“[t]he proposed understanding serves to emphasize domestically that there is no intent to alter the constitutional balance of authority between the State and Federal governments or to use the provisions of the Covenant to ‘federalize’ matters now within the competence of the States.”
Further, the court looked to Supreme Court precedent. In Bond v. United States, a “defendant was charged with violating the Chemical Weapons Convention Implementation Act, which Congress passed to effectuate the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction.” There the Court indirectly addressed issues of federalism. In Bond, the Court opined:
[e]ven if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters-observing the Constitution’s division of responsibility between sovereigns and leaving the prosecution of purely local crimes to the States. . . Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority.
The Nagarwala Court found FGM similar to the facts of Bond. Therefore, it found that “[a]pplication of these principles to the present case leads to the conclusion that Congress overstepped its bounds by legislating to prohibit FGM.”
Next, the Nagarwala Court analyzed four relevant factors to determine if the statute met confines of the Commerce Clause. First, the court evaluated the economic nature of FGM. Second, “whether the statute contains ‘a jurisdictional element limiting the reach of the law to a discrete set of activities that has an explicit connection with, or effect on, interstate commerce.’” Third, whether “there are sufficient congressional findings (third factor) or other evidence of a substantial effect on interstate commerce.” And fourth, whether there is a link between FGM and interstate commerce.
Here, the Nagarwala Court found Congress lacked authority to enact the statue under the Commerce Clause. First, the court distinguishes FGM from other commercial activity like possessing marijuana and child pornography. The court found there was not an interstate market for FGM, but instead, asserted “the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states. This is not a market, but a small number of alleged victims.” Further, the court argued that FGM was not a form of healthcare, but a form of physical assault. The Nagarwala Court strongly concluded “FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.”
Under the second and third factors, the Nagarwala Court found no jurisdictional element which required proof of a relationship to interstate commerce. The court explained
The cases indicate that the absence of a jurisdictional element is unimportant if there are sufficient congressional findings (third factor) or other evidence (fourth factor) of a substantial effect on interstate commerce. In the present case, however, there are no congressional findings other than the pro forma ones that accompanied passage of the statute. However, these are not findings as much as unsupported conclusions, and they do not begin to compare with the extensive findings made, for example, by both houses of Congress in Norton, Raich, and Perez. Nor are these the type of detailed, record-based findings that “would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.”
As for the fourth factor, the court asked “whether there is a rational basis for finding that FGM has a substantial effect on interstate commerce.” The Nagarwala Court found “[t]here is no evidence that FGM is a commercial activity, and there is no evidence that anyone beyond the mothers of the nine girls alleged in the third superseding indictment is in the market for this ‘service.’”  Therefore, the court concluded the statute was unconstitutional because “Congress had no authority to pass this statute under either the Necessary and Proper Clause or the Commerce Clause.”
It should be noted that the Nagarwala Court did not seem to evaluate the statute under Section 5 of the Fourteenth Amendment. However, the Supreme Court has taken a very limited view as to the extent Section 5 of the Fourteenth Amendment expanded the legislative authority of Congress. For example, The Supreme Court in Morrison v. United States held:
Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws. . . also does not give Congress the authority to enact § 13981. Petitioners’ assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct.
Therefore, it is unlikely that the Nagarwala Court would have upheld the statute under the Fourteenth Amendment.
FGM is a problem which affects the United States both internationally and domestically. More than two-hundred-million girls and women have been affected by FGM, and many international conventions and treaties address the issue. How can the United States address FGM at the national level after Nagarwala? Option one is to appeal the Nagarwala decision to the Sixth Circuit Court of Appeals. Another option, however, may allow the Federal Government to prohibit the practice of FGM without infringing on the police power of the states. Instead of Congress outlawing FGM itself, Congress could incentivize states to prohibit FGM.
In South Dakota. v. Dole, South Dakota challenged a federal law which withheld highway funds if a state’s drinking age was under twenty-one years. The state argued the law violated the Twenty-First Amendment “which grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” However, the Court upheld the law because “Congress has acted indirectly under its spending power to encourage uniformity in the States’ drinking ages. As we explain below, we find this legislative effort within constitutional bounds even if Congress may not regulate drinking ages directly.”
The Court reasoned that under Article I, § 8, cl. 1 of the United States Constitution, “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” The extent of Congress’ spending power, though not unlimited, may regulate “objectives not thought to be within Article I’s ‘enumerated legislative fields,’ [but] may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.”
Under Dole, Congress’s spending power over FGM would be subject to “several general restrictions.” First, the “exercise of the spending power must be in pursuit of ‘the general welfare.’” Second, if “Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’” Third, “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” Fourth, the Court noted “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.”
Last, Congress may not compel states to enact legislation. In National Federation of Independent Business v. Sebelius, the Supreme Court “asked whether ‘the financial inducement offered by Congress’ was ‘so coercive as to pass the point at which ‘pressure turns into compulsion.’” There, the Supreme Court concluded that a loss of less than half of one percent of a state’s budget was evidence of “encouragement” because the decision to enact legislation “‘remain[ed] the prerogative of the States not merely in theory but in fact.’” In Sebelius, however, the Supreme Court held that a federal law which would cut nearly all of a state’s Medicaid funding (nearly 20% of a state’s budget) was not “encouragement,” but a “gun to the head.” The Court ultimately held “[t]he threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”
Therefore, with these parameters in place, Congress is free to encourage the states to eradicate the practice of FGM—meeting our domestic and international obligations. In fact, many states (including Michigan) have enacted legislation prohibiting the practice of FGM. However, according to the AHA Foundation, twenty-three states still have yet to enact legislation prohibiting FGM. Further, even though many states have enacted legislation, these laws can be strengthened to better protect women. Incentivizing the states to enact legislation prohibiting FGM would certainly be a start to increasing the number of states which prohibit the practice.
FGM is a problem for young women around the world. Although the Federal government has enacted legislation criminalizing the practice—it is rarely used—and was recently found unconstitutional in a District Court decision. The government may potentially appeal the decision, or it can look for other ways to address the problem of FGM. Here, it is suggested that Congress enact legislation to encourage the states to enact their own legislation prohibiting FGM. Currently, just over half the states have enacted legislation against FGM. This is unacceptable. By encouraging the states to enact legislation prohibiting FGM, pressure will be placed on state governments to enact legislation, bringing the issue to the forefront and in the end better protecting women.
 Female Genital Mutilation (Feb. 2018), https://data.unicef.org/topic/child-protection/female-genital-mutilation/.
 Id. (quoting World Health Organization, Eliminating Female Genital Mutilation: An interagency statement, WHO, UNFPA, UNICEF, UNIFEM, OHCHR, UNHCR, UNECA, UNESCO, UNDP, UNAIDS, WHO, Geneva (2008) at 4).
 Id. (the language of Article 25 is not clear on the subject of FGM. The language UNICEF cites reads: “‘everyone has the right to a standard of living adequate for health and well-being.’”)
 See Generally United States v. Nagarwala, No. 17-CR-20274, 2018 U.S. Dist. LEXIS 197494, at *6 (E.D. Mich. Nov. 20, 2018).
 Lucas Mikelionis Law banning female genital mutilation ruled unconstitutional; Michigan doctors cleared of charges (Nov. 21, 2018), https://www.foxnews.com/politics/federal-judge-rules-law-banning-female-genital-mutilation-is-unconstitutional-dismisses-charges-again-michigan-doctors; Eli Meixler Federal Judge Rules U.S. Ban on Female Genital Mutilation Is Unconstitutional (Nov. 21, 2018), http://time.com/5460982/michigan-judge-female-genital-mutilation-ban-unconstitutional/.
 See Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *3.
 Id. at 6-7.
 International Covenant on Civil and Political Rights and Optional Protocol, Article III, (https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf).
 Id. at Article 24.
 Female Genital Mutilation, 18 U.S.C.S. § 116 (1996) (amended 2013). (LexisNexis, Lexis Advance through PL 115-281, approved 12/1/18)
 Id. Congressional finding: (6).
 Id. Congressional finding: (1)-(5).
 See Emp’t Div. v. Smith, 494 U.S. 872, 879-80 (1990)
 But see Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (holding laws passed with religious animus warrant heightened scrutiny).
 Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *7.
 Id. at 8.
 Id. at 9 (citing Report of the Senate Committee on Foreign Relations dated Mar. 2, 1992, 17-18). See also United States Senate Report on ratification of the International Covenant on Civil and Political Rights; background; resolution of ratification. Senate Exec. Rpt. 102-23 of March 24, 1992 at IX (“Text of Resolution of Ratification”).
 Id. at 10-11.
 Id. at 11-13 (quoting Bond v. United States, 572 U.S. 844, 855-856 (2014)).
 Id. at 14.
 Id. at 13-14.
 Id. at 25 (quoting Norton v. Ashcroft, 298 F.3d 547, 555-56 (6th Cir. 2002)).
 Id. at 32.
 Id. at 35.
 Id. at 36.
 See generally Gonzales v. Raich, 545 U.S. 1 (2004).
 See generally United States v. Chambers, 441 F.3d 438 (6th Cir. 2006).
 Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *32 (internal citations omitted).
 Id. at 33. Cf. United States v. Morrison, 529 U.S. 598 (holding the Violence Against Women Act was not justified under the Commerce Clause).
 Id. at 34.
 Id. at 35-36.
 Id. at 36 (citing United States v. Lopez, 514 U.S. 549, 563 (1995)).
 Id. at 37.
 Id. at 39.
 Morrison, 529 U.S. at 601.
 See Lucy Westcott Female Genital Mutliation on the Rise in the U.S. (Feb 6, 201,5 8:29 AM), https://www.newsweek.com/fgm-rates-have-doubled-us-2004-304773 2/6/2015 at 8:24 a.m. (accessed January 1, 2019).
 Female Genital Mutilation, (Feb. 2018), https://data.unicef.org/topic/child-protection/female-genital-mutilation/
 South Dakota v. Dole, 483 U.S. 203, 205 (1987) (quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980)).
 Id. at 206.
 Id. (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).
 Id. at 207.
 Id. (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)).
 Id. at 207-08 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)).
 Id. at 208.
 Top of Form
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012)Bottom of Form (quoting Dole, 483 U.S. at 211).
 Id. (quoting Dole, 483 U.S. at 211-12).
 Id. at 581.
 Id. at 582.
 Mich. Comp. Laws Serv. § 750.136 (LexisNexis, Lexis Advance through 2018 Public Act 364)
 FGM Legislation by State, https://www.theahafoundation.org/female-genital-mutilation/fgm-legislation-by-state/.
 Nagarwala, 2018 U.S. Dist. LEXIS 197494, at n. 7.
 See generally Nagarwala, 2018 U.S. Dist. LEXIS 197494.
 Id. at 38.