Search
Home

We Are

FAQ's

News

Press

Legal

Ethics

ND Quotes

NDBME

FGM-MGM

Academia

Protection

Insurance

Anatomy

Physician
Status

Medical

History

Religion

Resources

Sharing

Your Help

Feedback

Eighth Circuit
Court of Appeals
FGM Laws Are Sexist--Appeals--Page 1

District Court, FGM Suit Documents-1   District Court Documents-2  Appeals Court Documents-2    Relevant Statutes    FGM Lausuit-Related Newspaper Articles 
   
     

On this page, Appeals 1:
Plaintiff's Brief to the Eighth Circuit Court of Appeals (to be posted)
Defendant's (State of North Dakota's) Brief to the Eighth Circuit Court of Appeals
On page, Appeals 2:
Plaintiff's Notes on the Appeal's Oral Arguments.
Judgment of the Eighth Circuit Court of Appeals


      The following document filed by the State of North Dakota misses the point: Male infant circumcision is NOT a medical procedure, and therefore, parents do not have the right to request or assent to the procedure because it is a physical mutilation and which produces long-term negative physical and psychological effects. That these actual effects are outweighed by any potential benefits even the American Academy of Pediatrics has denied. This means the State of North Dakota has an obligation to protect male children from this amputation until they are of age and can request if they then want it. The State's denial that male and female genitals are "similarly situated" does not hold up. The State's attempt to paint FGM as always horrendously harmful while MGM is beneficial (or at least benign), also shows a failure to read the law as passed. The law does not just outlaw the extreme forms of FGM: clitoridectomy and infibulation. No cutting, nicking or ripping of the female genitals is allowed. No one can deny that some of these outlawed procedures are less destructive than male foreskin amputation.

___________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

Donna Fishbeck, Individually, and
as Mother and Natural Guardian of
Her Infant Son, Jonathan Fishbeck;
Jody McLaughlin; and Duane
Voskuil, Ph.D.,

Plaintiffs/Appellants,

VS.                                                                        Civil No. 96-4038

The State of North Dakota,
Defendant/Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

BRIEF OF APPELLEE

Heidi Heitkamp
Attorney General
State of North Dakota

By: Douglas A. Bahr
Assistant Attorney General
State Bar ID No. 04940
Office of Attorney General
900 East Boulevard Avenue
Bismarck, ND 58505-0041
Telephone (701) 328-3640
Facsimile (701) 328-4300
Attorneys for State of North Dakota.

TABLE OF CONTENTS

                                                                                                            Page

TABLE OF AUTHORITIES ...................................................................... ii
STATEMENT OF ISSUES ........................................................................1
SUMMARY OF ARGUMENT.................................................................. 2
STATEMENT OF THE CASE................................................................... 4

ARGUMENT  .............................................................................................5

    I.  THE PLAINTIFFS LACK STANDING............................................. 5

   II.  THE DISTRICT COURT PROPERLY DISMISSED THE
COMPLAINT   ...........................................................................................9

     A. N.D.C.C. § 12.1-36-01 does not violate the equal protection clause.... 9

     B. N.D.C.C. § 12.1-36-01 does not violate due process ........................16

     C.  The Court should decline to assume jurisdiction over the
pendent state-law claims .............................................................................18

CONCLUSIONS .......................................................................................19

TABLE OF AUTHORITIES

  Cases                                                                                                   Page(s)

Carnegie-Mellon University v. Cohill
484 U.S. 343 (1988)...................................................................................19

Catanzano by Catanzano v. Dowling,
60 F.3d 113 (2nd Cir. 1995) ...................................................................... 17

City of Cleburne v. Cleburne Livine Center, Inc.
473 U.S. 432 (1985) ...............................................................................9-10

Heckler v. Mathews
465 U.S. 736 (1984)................................................................................8,10

Los Angeles v. Lyons,
461 U.S. 95 (1983).......................................................................................5

Michael M. v. Superior Court of Sonoma County
450 U.S. 464 (1981) ...................................................................................10

Mine Workeks v. Gibbs
383 U.S. 715 (1966) .................................................................................. 18

Northeastern Florida Chapter of the AGC v. Jacksonville
508 U.S. 656 (1993) .................................................................................... 5

Parhan v. Hughes
441 U.S. 347 (1979) ........................................................................10,17-18

Plyler v. Doe
457 U.S. 202 (1982) .................................................................................... 9

Singleton v. Wulff
428 U.S. 106 (1976)......................................................................................8

United States v. Virginia
116 S. Ct. 2264 (1996) ................................................................................10

Statutes

U.S. Const. Article III .................................................................................... 2
U.S. Const. amend. XIV .................................................................................9
N.D.C.C. § 12.1-05-05 .................................................................................4
N.D.C.C. § 12.36-01 .....................................................................2-12,15-18
N.D.C.C.  § 23-13-13 ..................................................................................17

Other Authorities

Fed. R. Civ. P. 4 ..............................................................................................4
Local  Rule 7. 1 (c) .........................................................................................16

STATEMENT OF ISSUES

1.  Whether the plaintiffs have standing to challenge the constitutionality of N.D.C.C. § 12.1-36-01. The most apposite case is Northeastern Florida Chapter of the AGC v. Jacksonville 508 U.S. 656 (1993).

a.  Whether an interest in human rights gives a plaintiff standing to challenge a statute that has not been applied against the plaintiff or adversely affected the plaintiffs rights. The most apposite case is Northeastern Florida Chapter of the AGC v. Jacksonville 508 U.S. 656 (1993).

b.  Whether a parent has standing to challenge the constitutionality of N.D.C.C. § 12.1-36-01 when the section has not been applied against the parent or in any way interfered in the parent's parental rights. The most apposite case is Northeastern Florida Chapter of the AGC v. Jacksonville, 508 U.S. 656 (1993).

c.  Whether an infant has standing to challenge the constitutionality of N.D.C.C. § 12.1-36-01 when the section has not been applied against the infant or denied the infant the right to make informed medical decisions. The most apposite case is Northeastern Florida Chapter of the AGC v. Jacksonville 508 U.S. 656 (1993).

d.  Whether an alleged injury as a result of a circumcision is fairly traceable to N.D.C.C. § 12.1-36-01 when the circumcision resulted from the consent of a parent and not application of state law. The most apposite case is Northeastern Florida Chapter of the AGQ v. Jacksonville 508 U.S. 656 (1993).

e.  Whether the plaintiffs have standing when a favorable ruling will not provide any relief. The most apposite case is Northeastern Florida Chapter of the AGC v. Jacksonville 508 U.S. 656 (1993).

2.  Whether N.D.C.C. § 12.1-36-01 violates the Equal Protection Clause because it criminalizes minor female genital mutilation and not male circumcision when substantial medical evidence indicates female genital mutilation has no medical benefits and male circumcision has medical benefits. The most apposite cases are Parhan v. Hughes 441 U.S. 347, 354 (1979); Michael M. v. Superior Court of Sonoma County 450 U.S. 464, 468 (1981).

3.  Whether N.D.C.C. § 12.1-36-01 violates due process by not denying a minor male's parent or guardian the right to make the medical decision regarding whether a minor male will be circumcised. The most apposite case is Parhan v. J. R. 442 U.S. 584, 622 (1979). 

SUMMARY OF ARGUMENT

Plaintiffs lack standing to challenge the constitutionality of N.D.C.C.

12.1-36-01. Plaintiffs McLaughlin and Voskuil do not even purport to allege injury in fact; they simply allege they have an interest in the issue before the court. An interest in the legal issue before the court does not satisfy the standing requirement imposed by Article III of the United States Constitution. Plaintiff Donna Fishbeck also does not allege injury in fact. N.D.C.C. § 12-1.36-01 has not been applied against Donna Fishbeck or in any way interfered in her legally protected rights. Jonathan Fishbeck has not alleged any injury traceable to N.D.C.C. § 12.1-36-01. Jonathan was not forced to be circumcised or prohibited from being circumcised. The medical decision was left to him and his parents. Jonathan's surgery is traceable to his father's consent for the procedure, not N.D.C.C. § 12.1-36-01. Finally, a favorable decision in this case will not provide plaintiffs the relief they request.

N.D.C.C. § 12.1-36-01 does not violate the Equal Protection Clause of the Fourteenth Amendment because males and females are not similarly situated with regard to the issue of surgical alteration of the genitalia. It is generally accepted that female genital mutilation, unlike male circumcision, creates many risks and potential harm, while providing no medical benefits. On the other hand, many in the medical community believe male circumcision is a low-risk procedure that provides many potential medical benefits. The different opinions regarding the potential benefits and harm of female genital mutilation and male circumcision warrants a different treatment of the procedures by the legislature. N.D.C.C. § 12.1-36-01 is constitutional because it reasonably reflects the fact that routine surgical alteration of the genitals of minor females, unlike male circumcision, is believed to provide no potential medical benefits and advantages while posing significant and devastating health hazards.

N.D.C.C. § 12.1-36-01 does not implicate the Due Process Clause. N.D.C.C. § 12.1-36-01 does not address or interfere with the rights of a minor male's parent or guardian to make the medical decision of whether the minor male "will be circumcised. The Due Process Clause does not mandate that the state of North Dakota remove from parents of minor males their right and duty to make important and difficult decisions regarding their children's medical care. Plaintiffs' claim that N.D.C.C. § 12.1-36-01 violates the Due Process Clause is completely without merit.

STATEMENT OF THE CASE

Plaintiff Donna Fishbeck, Individually, and as Mother and Natural Guardian of her infant son, Jonathan Fishbeck, Jody McLaughlin, and Duane Voskuil, Ph.D. (hereinafter collectively referred to as "plaintiffs") filed the Complaint in this matter on June 7, 1996. Defendant State of North Dakota subsequently waive d service of the Summons as provided for in Fed. R. Civ. P. 4.

The Complaint alleges N.D.C.C. § 12.1-36-01 is unconstitutional in violation of both the Constitution of the United States and the North Dakota Constitution. Specifically, the Complaint alleges section 12.1-36-01 denies infant males equal protection of the law and deprives infant males of liberty and property without due process. (Complaint at 1130, 31, and 33, A. at 11-12.) The Complaint also alleges that section 12.1-3-01 violates N.D.C.C. § 12.1-05-05. (Complaint at 135, A. at 1213.) The Complaint seeks declaratory relief finding N.D.C.C. § 12.1-36-01 unconstitutional. (A. at 13.)

On August 9, 1996, the State filed a Motion to Dismiss and/or Motion for Summary Judgment. (A. at 14.) Plaintiffs subsequently filed a response. (A. at 124.) On October 22, 1996, the district court issued its Memorandum and Order and dismissed the Complaint on the grounds the plaintiffs lacked standing. (A. at 848) Judgment was issued on the same date. (A. at 851.) It is from the order and judgment that the plaintiffs appeal. (A. at 852.)

ARGUMENT

           I.   THE PLAINTIFFS LACK STANDING.
     

            In Los Angeles v. Lyons, 461 U.S. 95 (1983), the United States Supreme

Court explained:

          It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy. Plaintiffs must demonstrate a "personal stake in the outcome" in order to "assure that concrete adverseness would sharpen the presentation of issues" necessary for the proper resolution of constitutional questions. Abstract injury is not enough. The plaintiff must show that he "has sustained or is

immediately in danger of sustaining some direct injury" as the result of the challenged official conduct and the injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical."

Id. at 101-02 (citations omitted).

To have standing, the plaintiffs must show (1) injury in fact, which  means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a relationship between the injury and the challenged conduct which is fairly traceable to the challenged statute; and (3) the likelihood of redress, meaning the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Northeastern Florida Chapter of the AGC v. Jacksonville 508 U.S. 656, 663-64 (1993). "These elements are the 'irreducible minimum' required by the Constitution." Id. (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)).

The plaintiffs in the case sub judice do not and cannot show they have a personal stake in the outcome" of this case, that they have sustained or are in immediate danger of sustaining a direct injury, that the alleged injury is traceable to N.D.C.C. § 12.1-36-01, or that a favorable ruling would provide relief from the alleged injury. The plaintiffs lack standing; the Complaint was properly dismissed.

The Complaint alleges Jody McLaughlin is a Minot, North Dakota resident involved in human right issues. (Complaint at para. 2, A. at 5.) The Complaint also alleges Duane Voskuil is a professor of philosophy and ethics concerned with human rights. (Complaint at para. 3, A. at 5.)(Fn1)

{(Footnote 1) Interestingly, both Voskuil and McLaughlin testified in favor of passage of N.D.C.C. § 12.1-36-01. See Legislative History of 1995 Senate Bill No. 2454, written testimony of Duane Voskuil and Jody McLaughlin (A. at 36, 40, 44, 48-49, 52). Apparently, Voskuil's and McLaughlin's support of N.D.C.C. § 12.1-36-01 was simply an attempt to get the bill passed so they could subsequently challenge it and receive media coverage regarding their activist views.}

However, the Complaint does not allege McLaughlin or Voskuil have been adversely affected as a result of the alleged unconstitutionality of N.D.C.C. § 12.1-36-01. The Complaint does not allege McLaughlin or Voskuil's activities have been in any way hampered as a result of the prohibitions found in N.D.C.C. § 12.1-36-01. The Complaint also does not allege McLaughlin or Voskuil fear prosecution under section 12.1-36-01. Neither McLaughlin or Voskuil have suffered threatened or actual injury as the result of N.D.C.C. § 12.1-36-01. Accordingly, they lack standing to maintain this action.

The Complaint alleges Donna Fishbeck is a resident of North Dakota and mother of Jonathan Fishbeck. (Complaint at ¶ 1, A. at 5.) The Complaint also alleges Jonathan Fishbeck was circumcised with the consent of his father.(Fn2)

{(Footnote 2) It is somewhat ironic that Fishbeck argues her husband could not give medical consent for their son's circumcision, while at the same time asserting' she has authority to sue on her son's behalf.}

(Complaint at ¶ 9, A. at 6; Brief of Appellants at 1.) The Complaint does not allege Donna Fishbeck withheld consent from the circumcision of her son. The Complaint simply asserts the circumcision could not have been performed, whether or not she consented, if the law prohibited circumcision of males. (Complaint at ¶ 10, A. at 7.)

Fishbeck does not allege she is at risk of being prosecuted for the circumcision of her infant son. She also has not alleged N.D.C.C. § 12.1-36-01 in any way interfered with her parental right to withhold consent from the circumcision of her infant son. In fact, she argues the opposite. She claims N.D.C.C. § 12.1-36-01 is unconstitutional because it does not deny her the parental right to make a medical decision for her son. Fishbeck has not alleged the challenged statute-in-any way invaded a legally protected interest. Fishbeck lacks standing.

            Jonathan Fishbeck has not alleged any injury traceable to N.D.C.C. § 12.1-36-01. Jonathan was not denied the opportunity to make the al decision of whether to be circumcised. Section 12.1-36-01 also did not mandate Jonathan be circumcised; Jonathan was circumcised because he consented (through his father) to the procedure. Jonathan was not denied any legally protected interest--he was not forced to be circumcised or prohibited from being circumcised, the decision was his.

Even if Jonathan could satisfy the "injury in fact" prong of standing, which he does not, he fails to satisfy the second prong. To satisfy prong two, Jonathan must demonstrate his alleged injury (decision to be circumcised) is fairly traceable to N.D.C.C. § 12.1-36-01. Jonathan cannot make such a showing. Jonathan's surgery is not traceable to the challenged statute; Jonathan's surgery is the result of the consent for the surgery.

The plaintiffs also fail to satisfy the third requirement of standing. A favorable ruling in this case-- a finding N.D.C.C. § 12.1-36-01 is unconstitutional--will not provide the plaintiffs the relief they request. Plaintiffs want to make male circumcision illegal in North Dakota. However, a finding that N.D.C.C. § 12.1-36-01 is unconstitutional will not accomplish that purpose; it will simply make the statute ineffective. Plaintiffs' attempt to manipulate the court to accomplish what they could not accomplish legislatively should not be sanctioned.

If a statute is determined to violate the Equal Protection Clause, the proper remedy is to nullify the statute and order that its benefits not extend to the class the Legislature intended to benefit unless extending the statute's benefits more nearly accords with the Legislature's intention. Heckler v. Mathews 465 U.S. 736, 738 (1984). The court's remedial powers should not be used to circumvent the intent of the Legislature. Id. at 739 n.5. The legislative history of N.D.C.C. § 12.1‑36‑01 demonstrates the North Dakota Legislative Assembly was concerned with female genital mutilation, not male circumcision. There is absolutely no indication in the legislative history of section 12.1-36-01 to support extending the statute to criminalize the widespread practice of neonatal male circumcision. (A. at 39-52.) The testimony before the North Dakota Legislative Assembly, including the testimony by plaintiffs, only related to concerns with female genital mutilation. (A. at 44, 48-49, 50, 51.) The Legislature did not intend to criminalize neonatal male circumcision. Extending rather than eliminating the statute would, therefore, be contrary to legislative intent. Thus, as stated by the district court, "the plaintiffs accomplish absolutely nothing by this action." (A. at 849.)

None of the plaintiffs are minor females prohibited from having their genital tissue surgically altered by N.D.C.C. § 12.1-36-01, nor are the plaintiffs medical providers prohibited from surgically altering the genitals of minor females as a result of the challenged statute. See Singleton v. Wul 428 U.S. 106, 112-13 (1976). Rather, the plaintiffs are individuals with a theoretical interest in the issue of male circumcision; they have suffered no injury fairly traceable to the challenged statute and have no prospect of obtaining meaningful relief even if they prevail. Accordingly, the plaintiffs lack standing to pursue the requested declaratory relief.

II. THE DISTRICT COURT PROPERLY DISMISSED THE COMPLAINT.

The State filed a Motion to Dismiss and/or Motion for Summary Judgment with the district court. The motion was based upon the plaintiffs' lack of standing and the Complaint's failure to state a claim upon which relief can be granted. The district court dismissed the Complaint because the plaintiffs lacked standing and, therefore, did not address the substantive arguments. Apparently recognizing the validity of the State's motion for summary judgment is an issue of law that can be addressed by this Court despite the district court not having addressed the motion, plaintiffs argue the issues raised in their motion for summary judgment in their brief. Because the validity of the motion for summary judgment has been addressed by plaintiffs, if this Court concludes the district court erred in finding the plaintiffs lacked standing, the Court should address the validity of the State's motion for summary judgment and affirm the district court's order on alternative grounds. The issues raised by the motion for summary judgment are purely legal issues. It would, therefore, be a waste of judicial time and resources to remand this matter to the district court so the motion can be refiled, ruled upon, and again appealed.

      A. N.D.C.C. 4 12.1-36-01 does not violate the equal protection clause.

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. The Equal Protection Clause demands that all persons similarly situated be treated alike. Plyler v. Doe, 457 U.S. 202, 212 (1982). As explained in City of Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432 (1985),

[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic process.

 

The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution.

 

Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. . . . A gender classification fails unless it is substantially related to a sufficiently important governmental interest.

Id. at 440 (citations omitted); see also United States v. Virginia 116 S. Ct. 2264, 2275 (1996); Heckler v. Mathews 465 U.S. 728, 744 (1984).

Although the Equal Protection Clause prohibits "overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class," Parhan v. Hughes, 441 U.S. 347, 354 (1979) (plurality opinion of Stuart, J.), it does not "demand that a statute necessarily apply equally to all persons" or require ... things which are different in fact ... to be treated in law as though they were the same'." Michael M. v. Superior Court of Sonoma County 450 U.S. 464, 468 (1981) (quoting Rinaldi v. Yeager 384 U.S. 305, 309 (1966)). Rather, a statute should be upheld "where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." Id. N.D.C.C., § 12.1-36-01 is not invidious; section 12.1-36-01 simply recognizes the sexes are not similarly situated with regard to the issue of circumcision and genital alteration.

The legislative history of section 12.1-36-01 (introduced as 1995 Senate Bill 2454) makes it clear the Legislative Assembly adopted the bill to protect minor females from the documented unique risks and harm caused by unnecessary surgical modifications of the female genitalia. (See A. at 39-52.) There can be no serious contention that protecting minor females from the risks and harm caused by unnecessary surgical modifications of the female genitalia is an important governmental interest. Thus, the sole issue is whether the North Dakota Legislative Assembly's different treatment of male circumcision and female genital mutilation violates the Constitution.

It does not take a medical doctor to discern that males and females are not similarly situated with respect to their genitalia and the type of medical procedures that can be performed on their genitalia. Although gender is not a meaningful consideration when determining one's intelligence or physical ability, gender is specifically related to the type of genital surgery that can be performed on a person and the medical benefits or resultant harm that can result from the genital surgery.

Medical experts and medical literature uniformly agree that female genital mutilation creates many risks and potential harm while providing no medical benefits. Such is not true with regard to male circumcision. Although some medical personnel and medical literature assert the risks and harm of male circumcision is similar to the risks and harm of female genital mutilation, this is not the consensus of the medical community and literature. To the contrary, substantial literature and many experts believe there are many medical benefits to male circumcision. Thus, there is a significant distinction between female genital mutilation and male circumcision -- it is agreed that female genital mutilation has no medical benefits; it not agreed that male circumcision has no medical benefits. Because substantial evidence indicates male circumcision has medical benefits, the North Dakota Legislative Assembly properly left the decision regarding the routine procedure to the judgment of minors' guardians and physicians.

The purpose of N.D.C.C. § 12.1-36-01 is to protect female minors from the unique risks and harm caused by unnecessary surgical modifications of their genitalia. The statute does not include male circumcision because, unlike female genital mutilation, substantial evidence indicates there are benefits to male circumcision and the potential harm is less than the harm caused by female genital mutilation. Although some medical personnel may not agree there are valid medical reason for male circumcision, the mere fact [that] substantial evidence indicates medical benefits from male circumcision is grounds to differentiate the procedures. Male circumcision may provide valid medical benefits; it is, therefore, a personal medical decision whether to have the procedure. Female genital mutilation has no medical benefits; a personal decision to have the procedure is therefore prohibited.

The Legislature can properly prohibit a medical procedure that the medical community agrees harms a child and provides no benefits without prohibiting a medical procedure where no such consensus exists. The classification is substantially related to the important governmental interest-- preventing harm to children.

Documentation was provided at the district court evidencing that some medical professionals believe surgically altering female genitalia is not anatomically similar to the procedure of male circumcision. (Affidavit of Craig T. Shoemaker at ¶ 3, 6, A. at 53-55.) As explained by Dr. Shoemaker:

Surgical alteration of female genitalia, often referred to as female genital mutilation, is typically characterized by amputation of the clitoris and circumferential excision of tissue, the labia minora, surrounding the clitoris. Variations of the procedure may include further excision of the labia majora, which are then stitched together leaving a very small posterior opening for passage of urine and menstrual blood.

 

In a human embryo, the clitoris and the glans of the male's penis derive from the genital tubercle, which has developed by 4 to 6 weeks of gestation. The primitive urethral folds present in the human embryo develop differentially in the male and female. In girls the urethral folds become the labia minora and in boys the folds fuse to form the tubular urethra. The genital swellings present early in development subsequently become the labia majora in females and the scrotum in males. In males, the skin of the body of the penis grows over the glans and is referred to as the prepuce.

 

To graphically make a comparison between the two procedures: In order to duplicate the same procedure in the male infant as is done in typical surgical alteration of female genitalia, the head of the penis would have to be cut off and a slit made in the shaft. For the more severe female procedure to be duplicated in a male, the scrotum would have to be opened and then sewn partially over the amputated penis. Circumcision of the male infant involves removing some of the prepuce only, without disruption of other tissues.

Shoemaker Aff. at 13, A. at 53-54; see also State Exhibit 7, at 712, A. at 96 (surgically altering female genitalia "is much more damaging than male circumcision. The mildest form, clitoridectomy, is anatomically equivalent to amputation of the penis.” For a more detailed explanation of the types of female genital operations, see State Exhibit 9, at 1714, A. at 103.

Not only do many medical professionals believe female genital mutilation is not anatomically similar to male circumcision, many medical professionals believe and substantial medical literature indicate the risks and potential harm of the procedures differ. Routine female genital alteration is not considered to have any medical benefits and, from the perspective of public health, is much more damaging than male circumcision. (Shoemaker Aff. at ¶ 4 and 5, A. at 54-55.) Surgical alteration of female genitalia "constitutes a health hazard with short and long-term physical complications and psychological affects." (State Exhibit 7, at 712, A. at 96. See State Exhibit 7, 712-716, A. at 96-100, and State Exhibit 9, at 1715, A. at 104, for a more detailed explanation of physical complications and psychological effects of female genital mutilation.)

On the other hand, male circumcision is a low‑risk procedure believed by many members of the medical community to have many medical advantages. (Shoemaker Aff. At ¶ 4 and 5, A. at 54‑55.) As explained by the American Academy of Pediatrics Task Force on Circumcision, "[p]roperly performed newborn circumcision prevents phimosis, parafamosis, and balanoposthistis and has been shown to decrease the incidents of cancer of the penis among U.S. men. It may result in decreased incidents of urinary tract infection. An increase incident of cancer of the cervix has been found in sexual partners of uncircumcised men infected with human papillomavirus." (State Exhibit 2, at 390, A. at 75.) The task force also found that newborn male circumcision "is a rapid and generally safe procedure" that "has potential medical benefits and advantages as well as disadvantages and risks." Id.

Dr. Edgar J. Schoen explained:

The benefits of neonatal circumcision lie in its ability to prevent certain diseases. As with other public health measures such as immunization, its disadvantages are short-term--any untoward effects occur during or shortly after the procedure--and its advantage is long-term protection against future disease. The potential medical benefits of circumcision of newborns are seen over a lifetime and involve reducing the incidence of a number of diseases, ranging from urinary tract infections in early infancy to penile cancer in middle and old age, and the continued ease of genital hygiene and avoidance of balanoposthistis and phimosis....The benefits of routine circumcision of newborns as a preventive health measure far exceed the risks of the procedure.

(State Exhibit 3, at 1310-1311, A. at 79-80.) For more information regarding the benefit of male newborn circumcision, see generally State Exhibits 4, 6, 8, 10 and 11, A. at 81, 91, 101, 106, 111, respectively. In fact, newborn circumcision "is the safest, most performed surgical operation, with the least complications." (State Exhibit 5, at 727, A. at 87.) N.D.C.C. § 12.1-36-01 recognizes the distinction between male and female genitalia and the different benefits and harm resulting from genital surgery.

The affidavits and documentation filed by plaintiffs in response to the State's motion for summary judgment do not preclude summary judgment. To the contrary, they support the motion. Plaintiffs' affidavits and documentation simply demonstrate there is a dispute in the medical community as to whether male circumcision poses serious risks and has medical benefits. It is this very dispute that warrants that female genital mutilation be treated differently than male circumcision. It is generally agreed female genital mutilation poses serious health risks and has no benefits; there is no such agreement with regard to male circumcision.

            The gender classification found in N.D.C.C. § 12.1-36-01 is substantially related to a sufficiently important governmental interest. The governmental interest advanced by section 12.36-01 is that of protecting minors from what the medical community agrees is to be a painful, damaging procedure that has no medical benefits. Only prohibiting routine female genital alteration is substantially related to the important governmental interest; many members of the medical community believe male circumcision has potential medical benefits and does not pose serious health hazards. Accordingly, the North Dakota Legislative Assembly acted well within its authority when it elected to only prohibit routine surgical alteration of the genitals of minor females.

This is not a case where the statute is being challenged on the ground it "invidiously discriminates" against females. To the contrary, the statute protects females from a type of physical abuse that can only be inflicted upon females. Nor is this a case where the gender classification is made for administrative convenience or based on sexual stereotypes. To the contrary, the statute reasonably reflects the fact that routine surgical alteration of the genitals of minor females, unlike male circumcision, is believed to provide no potential medical benefits and advantages while posing significant and devastating health hazards. The statute should be upheld.

B.   N.D.C.C. 4 12.1-36-01 does not violate due process.(Fn3)

{(Footnote 3) The State's Motion to Dismiss and/or Motion for Summary Judgment moved for dismissal of plaintiffs' due process claim. (A. at 29-31.) Plaintiffs' brief at the district court did not brief the due process claim. Plaintiffs' failure to brief this issue was an admission the claim should be dismissed. Local Rule 7.1(c). Interestingly, plaintiffs have also failed to address this issue in its brief filed with this Court.}

The Complaint alleges N.D.C.C. § 12.1-36-01 violates due process because it permits a minor male's parent or guardian to make the decision regarding whether the minor male will be circumcised. (Complaint at ¶ 30.) Contrary to plaintiffs' assertion, N.D.C.C. §- 12.1-36-01 does not grant parents of minor males authority to make "medical decisions regarding circumcision. The absence of a statute prohibition permits parents or guardians of a minor male to decide whether a child should be circumcised. N.D.C.C. § 12.1-36-01 is not unconstitutional merely because it does not criminalize certain conduct. If it was, every other North Dakota statute would be unconstitutional for the same reason.

Section 12.1-36-01 criminalizes the surgical alteration of the genitals of female minors under certain circumstances. Criminalizing such conduct does not implicate the liberty and property interest of minor males. N.D.C.C. § 12.1-36-01 has no application to minor males. Plaintiffs' claim that N.D.C.C. § 12.1,-36-01 violates due process is without merit.(Fn4)

{(Footnote 4)  It is somewhat ironic that plaintiffs argue due process is violated because N.D.C.C. § 12.1-36-01 does not restrict the liberty of minor males to be circumcised.}

Even if circumcision of a minor male deprives the male of liberty or property, the Due Process Clause of the Fourteenth Amendment is not implicated by a parent's decision to have a male infant circumcised. "[N]ot every loss of liberty is governmental deprivation of liberty, and it is only the latter that invokes the Due Process Clause of the Fourteenth Amendment." Parhan v. J. R., 442 U.S. 584, 622 (1979) (Stuart J., concurring); see also Catanzano by Catanzano v. Dowling 60 F.3d 113, 117 (2nd Cir. 1995). A decision by a parent or guardian to have a minor male child circumcised does not constitute state action. It is not the state that performs the medical procedure or in any way requires it to be performed. Whether a circumcision is performed is a decision to be made by the parent or guardian and the medical provider. See N.D.C.C. § 23-12-13 (identifying persons authorized to provide informed consent for health care for a minor patient).

N.D.C.C. § 12.1- 36-01 does not address whether male infants should be circumcised. The legislature has left that and other medical decisions to the responsibility of the minor child's parent or guardian. "Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for care or treatment. Parents can and must make those judgments.” Parhan, 442 U.S. at 603. The fact that male circumcision has some potential disadvantages in addition to the medical advantages “does not diminish the parents' authority to decide what is best for the child." Id. at 604. This can be said of all medical procedures.

Parents constantly make decisions regarding the health care of their children. When a parent decides upon surgery for a child, the Fourteenth Amendment is not invoked. Cf. Parhan, 442 U.S. at 624. Although the government has power to limit parental authority in some cases, such as done in N.D.C.C. § 12.1-36-01, the Constitution does not compel or authorize the state to intervene between parent and child in all cases. Nothing in the federal constitution requires the state of North Dakota to remove from parents their right and duty to make important and difficult decisions regarding their children’s medical care. Plaintiffs' claim asserting otherwise is meritless.

      C.  The Court should decline to assume jurisdiction over the pendent state-law claims.

The modern doctrine of pendent jurisdiction stems from the Supreme Court's decision in Mine Workers v. Gibbs 383 U.S. 715 (1966). Pursuant to Gibbs, a federal court has jurisdiction over an entire action, including state-law claims, whenever the federal-law claims and state-law claims in the case "derive from a common nucleus of operative fact" and are "such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding." Id. at 725. However, Gibbs drew a distinction between the power of a federal court to hear state-law claims and the discretionary exercise of that power.

 

The Gibbs Court recognized that a federal court's determination of state-law claims could conflict with the principle of comity to the States and with the promotion of justice between the litigating parties. For this reason', Gibbs emphasized that "pendent jurisdiction is a doctrine of discretion, not of plaintiffs right." [Gibbs 383 U.S. at 726.] Under Gibbs. a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicate that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.

Carnezie-Mellon University v. Cohill 484 U.S. 343, 349-50 (1988).

As previously explained, the federal law claims asserted in the Complaint fail and were properly dismissed. Dismissal of the federal-law claims at an early stage of litigation is "a powerful reason to chose not to continue to exercise jurisdiction." Id. at 351. In light of the fact plaintiffs' federal claims based upon equal protection and due process fail, this Court should exercise its discretion and decline to assume jurisdiction over the pendent state-law claims.

CONCLUSIONS

For the above reasons, the State of North Dakota respectfully requests that this Court affirm the district court's order dismissing the Complaint against it.

 Dated this 7th day of February, 1997.

State of North Dakota
Heidi Heitkamp
Attorney General

By Douglas A. Bahr
Assistant Attorney General
State Bar ID No. 04940 900
East Boulevard Avenue
Bismarck, ND 58505-0041
Telephone (701) 328-3640
Facsimile (701) 328-4300
Attorneys for State of North Dakota.

 District Court Documents-1   Suit-Related Newspaper Articles

 

 

                             Search   Home   We Are   FAQs   News   Press   Legal    Ethical    Quotes   NDBME   FGM-MGM   Academia   Protection   
                                                    Insurance   Anatomy   Physicians   Medical   History   Religion    Resources   Sharing   Help   Feedback