Michigan FGM case could test bounds of religious liberty

This fall, a United States district judge will hear a landmark case: For the first time, the federal government is pursuing a case of female genital mutilation on American soil.

Defense lawyers have said they will argue a freedom of religion defense – setting the stage for an explosive test of Americans’ religious rights that experts say could ultimately be settled by the Supreme Court.

The case began with charges related to two 7-year-old girls who were transported to Livonia, Mich., by their parents to have FGM performed on them, according to the government. Six people have been charged, and the clinic where the procedures were performed has been closed. The reach of the investigation has since expanded to cities including Los Angeles and Minneapolis. Assistant US Attorney Sarah Woodward has said in court it’s possible the doctor performed nearly 100 procedures between 2005 and 2017.

“Most religious freedoms don’t really affect other people,” says Frank Ravitch, an expert on law and religion who teaches at Michigan State University’s law school. “There are exceptions, but not in this direct a way, where we have these young girls who are having their bodies affected. It raises some really powerful questions.”

In the Michigan case, the courts will weigh a religious minority's rights against the federal government’s interest in protecting children. Experts agree that if the government proves the procedure caused substantial harm to the girls, then convictions are virtually guaranteed.

“Religious freedom does not include the freedom to do things that we all consider harmful to children,” says Robert Sedler, a constitutional law professor at Wayne State University in Detroit.

FGM is an umbrella term for a variety of cutting procedures intended to curb a girl’s future sexuality. The practice is typically performed for religious or cultural beliefs – most commonly in parts of Africa and the Middle East. The extent varies greatly, but any form of FGM, the World Health Organization contends, amounts to a human rights violation. The United States has explicitly banned FGM since 1995.

Jumana Nagarwala, the doctor who performed the procedure; Fakhruddin Attar, the owner of the clinic; his wife, Farida, who prosecutors allege assisted; another assistant, Tahera Shafiq; and Farida Arif and Fatema Dahodwala, the mothers of two Detroit-area girls who prosecutors allege were also victims, all face charges. The accused and the alleged victims are all members of the Dawoodi Bohras, a sect of Shiite Islam concentrated in western India.

Among the Bohras, an ethnic Gujarati community of some 1.2 million, the cutting is known as khatna, and has been practiced for centuries. After a Bohra girl turns 7, she’s typically taken by her family to see an adult woman, who has been appointed by religious clergy and is often a licensed medical practitioner. Beforehand, the girl is typically told she’s going for a fun outing, like a movie or a party; afterward, she’s told that what happened must be kept secret.

“In 99 percent of the cases it’s based on deceit. You’re never told the truth about what is going to happen to you,” says Masooma Ranalvi, a Bohra woman who is a leading anti-FGM activist. “They should be convicted. They knew what the law is and yet they did it… They had no business doing this to children.”

According to Ms. Ranalvi, around 80 percent of Bohras still practice khatna, although recently the community has become sharply divided over the custom. In 2015, an Australian court found three Bohras, including one religious leader, guilty of cutting two girls; the same year, Ranalvi and other Bohra women started a campaign to end the practice. The campaign has since amassed almost 100,000 supporters on Change.org and helped push the matter in the Indian legal system, where the Supreme Court is expected to take it up later this year.

But the increased attention has also provoked a wave of support. After the Australian ruling, Bohra clergy circulated an edict that followers around the world should comply with local laws, but the sect’s spiritual leader – the Bohras’ highest authority – has urged followers to continue the practice. Many Bohra women have also come forward to defend it.

“I have only sweet memories attached to the day when I was taken for the procedure,” one 50-year-old woman recently told the Indian newspaper The Hindu. “My mother and I bonded, the same way my daughter and I did when she was circumcised.”

A key argument for the defense is that the procedure that was done at the clinic was minor – a nick or scraping rather than an actual cutting.   

“We know there is female genital mutilation,” Mary Chartier, a lawyer for Fakhruddin Attar, told the Detroit Free Press in May. “No one is saying it doesn’t exist. But what we’re saying is this procedure does not qualify as FGM.”

Ms. Chartier and Shannon Smith, Nargarwala’s attorney, did not respond to the Monitor’s requests for interviews. An attorney for Farida Attar, Matt Newburg, declined to comment.

The trial is set for October.

Ravitch, the Michigan State University professor, says the case does raise legal questions about the extent of parents’ control, based on religious motivations, over their children’s health.

In other cases involving children and religious rights, he says, “a line has been drawn” establishing that parents’ religious rights may justify a defense against a minor harm to a child but not when she suffers significant bodily harm or death, Ravitch says.

The FGM accusations are different, though, because the adults are accused of perpetrating an injury rather than failing to give proper care. “The religious defense is really unique in this context,” says Ravitch. “It was commission versus omission.”

Still, the professor sees a theoretical way the defense could win, based on the legal principle of narrow tailoring. The defense would have to successfully argue that the federal law banning FGM is too broad, and that the procedure done at the clinic should be exempted. But the government’s interest – protecting children, including against unnecessary medical procedures – is a strong one.

“If there’s any long term damage the government wins the case. There is no question,” he says.

“Even if it was just a nick, the government theoretically could lose, but there’s still at least a 50 percent chance that they would win.”