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I. Glenn Cohen, Nikolas Bowie, Megan Jones & Eli Y. Adashi, Preventing Female Genital Mutilation in the United States: The Legal Threat to Effective Action, 110 Am. J. Pub. Health 813 (2020).

Abstract: FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.2 Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.2 While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal "uncleanliness," prevent "deviant" premarital sexual activity, preserve "purity," and hinder sexual pleasure.2 FGM is a globally recognized human rights violation rendered unlawful under several international treaties. THE COURT'S DECISION On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government's enumerated powers and thus declared the statute unconstitutional.3 The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.3 The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman's opinion the final word.4,5 Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. "4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no "single State or local jurisdiction [could] control [FGM]" or protect against the physical, psychological, and civil injury it causes.5 Second, the district court mischaracterized FGM as a noncommercial "form of physical assault" rather than as a paid-for health care service within the national market of licensed medical providers. 3(p22) As federal prosecutors argued, "FGM is usually performed by trained practitioners," and the statute "contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.