The first-ever federal case of female genital mutilation in the US has added a new layer of complication: a defense based on religious freedom.
The case has been ongoing since February when emergency room doctor Jumana Nagarwala, 44, was charged with performing FGM on two girls as young as 7 in Livonia, Michigan.
The case made its way to court after the FBI received an anonymous tip to investigate Nagarwala and later filed a criminal complaint against Nagarwala to the US District Court of Eastern Michigan on April 12.
Days later, the owner of the clinic, Dr. Fakhruddin Attar, and his wife Farida were arrested for allegedly conspiring to aid Nagarwala in performing FGM. Farida was allegedly present when Nagarwala performed a procedure that involved using a gauze-covered razor to scrape the genitalia of the young girls.
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On Saturday, the Detroit Free Press reported that Mary Chartier, defense lawyer for the Attars, plans to argue that the FGM charge goes against her clients’ right to religious freedom. Chartier will argue that her clients did not perform any actual cutting, and that the accused’s first amendment rights are infringed Detroit Free Press reports.
As this is the first federal case of FGM in the history of the US, it’s also the first time religious freedom, protected by the First Amendment of the Constitution, will be used as a defense against charges of FGM.
"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 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."
Nagarwala’s lawyer, Shannon Smith, also argued in court in April that the procedure was religious, not cultural.
The accused doctors are members of the Islamic Dawoodi Bohra community, which has roots in practicing FGM, which is called khatna in the community. Dawoodi Bohra religious leader, Syedna Mufaddal Saifuddin, issued a statement last August urging followers to stop the practice in countries where FGM is illegal. But as this case highlights, the practice not an easy tradition to break.
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Legal experts say that whether the children involved were harmed will be a bigger determining factor in the case, even when it comes to the parent’s rights to religious freedom.
“It is hard for me to imagine any court accepting the religious freedom defense given the harm that's being dealt in this case," Erwin Chemerinsky, an expert on First Amendment law at University of California Irvine told Detroit Free Press. “You don't have the right to impose harm on others in practicing your religion.”
"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," Nicholas Little, the legal director at the Center for Inquiry, an educational organization told Broadly, Vice News’ women-focused media channel.
But Frank Ravitch, a law and religion professor at University of Michigan considered the possibility of this argument holding up in court.
“It is theoretically possible that if the procedure really was just a nick that does not cause lasting damage and does not harm sexual health or sensitivity for the young women, allowing the nick, but nothing more, could be more narrowly tailored than an outright ban," Ravitch said. "It would also keep the practice from going underground, which could lead to more serious mutilation."
After the FBI investigation, an outside medical practitioner examined the girls and found small nicks and tears on the girls’ genitals, Broadly reports. One of the girls claimed to have severe pain after the procedure.
Read More: Medicalization of FGM Serious Health Threat
Court documents showed one of the victims told investigators that she “could barely walk after the procedure, and that she felt pain all the way down to her ankle," USA Today reports.
Global organizations for women’s rights and health, like Equality Now and the World Health Organization, strictly condemn FGM as a human rights violation where religion is no excuse for its detrimental physical and mental health concerns.
As the case continues in court, activists hope the case will continue to raise awareness about FGM.
"I hope this is an opportunity for more awareness and education on this issue," Mariya Taher, an FGM victim and member of the Dawoodi Bohra community turned anti-FGM activist in Cambridge, Mass., said.