Religious Freedom

Doctors Argue That Female Genital Mutilation Is Protected Under First Amendment

In a landmark case, lawyers are claiming religious freedom to defend doctors facing charges for performing FGM on seven-year-olds in Michigan.

Gabby Bess

Gabby Bess

Photo by Mosuno via Stocksy

Two doctors in Detroit, along with one of their wives, are about to take the first religious defense of female genital mutilation to a US Federal court. The case stems from a FBI investigation into Dr. Jumana Nagarwala after the authorities received a tip that the physician was performing the procedure on young girls.

According to the original criminal complaint, the investigation revealed that Nagarwala allegedly performed FGM on two seven-year-old Jane Does, who had travelled from Minnesota with their families. When interviewed by the FBI, one girl said her parents told her she was going Detroit, along with the other child, for a "special girls' trip." After they arrived at the hotel, the girls said their parents took them to the doctor "to get the germs out" of their stomachs. One of the girls described what happened at the clinic, after she took off her pants and underwear, as a "pinch" on "the place [where] she goes pee." The other unnamed girl said that after she took off her pants and underwear she "got a shot," and then could barely walk.

Read more: Female Genital Mutilation and the Women Who Practice It

A winter glove that belonged to one of the girls was recovered at the clinic Nagarwala is said to have operated from. After obtaining a search warrant, an independent medical doctor performed an examination on one of the girls and found that "her clitoral hood has a small incision, and there is a small tear to her labia minor." It was later found that several other girls have allegedly been taken to Nagarwala for genital cutting. Charges have also been brought against the doctor who is accused of allowing Nagarwala to use his clinic, Dr. Fakhruddin Attar, and his wife, who allegedly was present during the procedures, according to the Detroit Free Press.

The publication also reports that Attar's lawyer, Mary Chartier, is planning on arguing that FGM is constitutionally protected under the First Amendment. The defendants are all a part of the Dawoodi Bohra community, which is an Indian Islamic sect. FGM is illegal in the United States, but Chartier says that the law is "unconstitutionally vague and overly broad." She also makes a distinction between FGM and the procedure that the Nagarwala allegedly performed.

"We know there is female genital mutilation. No one is saying it doesn't exist. But what we're saying is this procedure does not qualify as FGM," Chartier told the Detroit Free Press. "And even if it did, it would be exempt because it would violate their First Amendment rights. They believe that if they do not engage in this then they are not actively practicing their religion."

FGM is often erroneously connected to Muslim communities, when in fact it is a cultural practice.

Nicholas Little, the legal director at the Center for Inquiry, doesn't think this argument will hold up. "It is important to note that there's no constitutional right to an exemption from a law of general applicability based on religious belief," he told Broadly. "Under the Religious Freedom Restoration Act, however, a person is entitled to an exemption if they can show that the law substantially burdens their exercise of a sincerely held belief." He adds that an exception can be denied if the government has a compelling interest to do so, which in this case would clearly be "the protection of a seven-year-old child from an abusive procedure."

"While courts have become more willing to grant religious exemptions, I find it very unlikely they will do so to permit this to be done to a child," he explained. "Initially, such exemptions were only sought and granted for self impacting actions—such as, for example, a Native American using peyote in a religious ceremony. The Supreme Court, in Hobby Lobby, dramatically and wrongly, in my opinion, extended this, allowing a religious corporation to opt out of a law when such an opt out would cause harm to a third party, the women denied access to free contraception. However, this would be a major step further, to allow direct harm to a child."

Rana Elmir, the deputy director of the ACLU of Michigan, agrees that freedom of religion "doesn't allow any of us to ignore laws protecting people from harm," adding that "[this] question before the court is not new."

Read more: How Islamophobia Hurts Muslim Women the Most

She cautions that this case should not be exploited to fuel Islamophobia in the US. "FGM is often erroneously connected to Muslim communities, when in fact it is a cultural practice. It is practiced by a limited number of adherents of the Muslim, Christian, and Jewish faiths, as well as some animists," Elmir said. "However, in the days after these charges came to light, legislators in Michigan introduced an anti-international law bill. While this bill itself may seem innocuous, it was clear by the sponsoring legislator's remarks that the bill was intended to block Sharia law, baselessly connecting sharia to the practice of FGM."

Indeed, many women from the Dawoodi Bohra sect have spoken out against the practice and described the harm it has caused them. Within the community it is referred to as khatna and forced on girls for "religious purity." Sahiyo, an anti-FGM organization which promotes an education-based approach to end the practice, was founded by a Dawoodi Bohra woman who underwent FGM as a resource for other survivors; the organization, too, has expressed concern about the Detroit case being used to expand surveillance of Muslim Americans.

"We have the absolute right to believe whatever we want about God, faith, and religion, and we have the right to act on our beliefs. But there's a distinct line drawn when those actions hurt others," Elmir said. "At the same time, we must also reject those who seek to exploit tragedy for political gain. While legislators may be driven by a desire to protect children, measures such as the anti-international law bill, are misguided, unnecessary and only serve to hurt and divide our communities by scapegoating and discriminating against Muslims, who have widely and vocally rejected this practice."