THE JOHN MARSHALL LAW REVIEW (Chicago), Volume 32: Pages 353-380,
Winter 1999

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INTRODUCTION

         Everyday in the United States strangers tie thousands of infants to plastic boards and surgically alter their genitals without anesthetic or medical justification.1 The procedure is male neonatal circumcision, and it "is the most commonly performed surgical procedure in the United States."2

         Doctors circumcised Donna Fishbeck's infant son.3 The boy's father consented to the procedure; she did not.4 The circumcision took place in North Dakota where a Female Genital Mutilation (FGM) specifically prohibits female circumcision but not male circumcision.5 Ms. Fishbeck believes that the North Dakota law should have prevented the child's father from consenting to the surgery over her objection.6 She feels North Dakota should ban male circumcision because the procedure is just as immoral and harmful as female circumcision.7 Believing the state failed to protect her son from needless harm, Ms. Fishbeck filed a suit against the state of North Dakota alleging that the FGM statute violated the Equal Protection clause of the United States Constitution for failing to treat males and females equally under the law.8

         Jody McLaughlin and Duane Voskuil, the FGM statute's authors, originally drafted a gender-neutral law which would have prohibited both male and female circumcision.9 The North Dakota legislature, however, refused to pass the law.10 The authors decided that the state government needed to protect at least some of the children who were at risk of being circumcised.11 Therefore, they redrafted the legislation to prohibit only female circumcision.12 The law in this form passed both houses of the North Dakota legislature and was signed into law by the governor.13

         Although Ms. McLaughlin and Mr. Voskuil got the current law passed, they were unsatisfied with a law that only protected half of the newborn population from having their genitals surgically altered.14 Thus Ms. McLaughlin and Mr. Voskuil joined Donna Fishbeck in her suit challenging the FGM statute in the District Court of North Dakota on the grounds that the statute violated the Equal Protection Clause.15 The plaintiffs argued that the FGM statute was unconstitutional because males were treated differently than females solely because of their gender.16 The District Court of North Dakota dismissed the appeal for lack of standing, which the Eighth Circuit Court of Appeals affirmed.17

         Since none of the plaintiffs in Fishbeck had standing under Article III of the Constitution, the issue of whether a female circumcision statute violates the Equal Protection Clause remains unanswered.18 This Comment discusses why state female circumcision laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Part I describes male and female circumcision and why male circumcision became so prevalent in the United States. This part further discusses why state legislatures have enacted only female circumcision laws. Part II addresses why male circumcision rates are too high considering the lack of medical support and potential health concerns related to the procedure. This part also outlines the equal protection argument that the plaintiffs in Fishbeck would have proposed and further demonstrates that male circumcision should be banned under the Fourteenth Amendment notwithstanding the First Amendment's right to exercise the religion of one's choice. Part III proposes that the courts strike down FGM statutes as unconstitutional, and that state legislatures enact gender neutral, generally applicable circumcision laws which protect all children from unnecessary modification of their genitalia. To accomplish this goal, this Part proposes a model circumcision statute which passes constitutional scrutiny.


         1. Sami A. Aldeeb Abu-Sahlieh, To mutilate in the Name of Jehovah or Allah; Legitimization of Male and Female Circumcision, 13 MED & L. 575, 606 (1994); Karen Garloch, Still Debatable, CHI. TRIB., July 10, 1997, at 2. Abu-Sahlieh estimates that 3,300 male babies are circumcised each day. Abu-Sahlieh, supra, at 606. Approximately one circumcision occurs "every 26 seconds." Electronic memorandum from Tim Hammond, National Organization to Halt the Abuse and Ritual Mutilation of Males (NOHARMM), to Shea Lita Bond (Sept. 9, 1997) (on file with author).
         2. Thomas E. Wiswell & C Dietrich W. Geschke, Risks from Circumcision During the First Month of Life Compared with those for Uncircumcised Boys, 83 PEDIATRICS 1011, 1011 (1989); see also David L. Gollaher, From Ritual to Science: The Medical Transformation of Circumcision in America, 28 J. SOC. HIST. 5, 5 (1994) (stating that "[s]ince the early years of the twentieth century, neonatal circumcision has been the most frequently performed surgery in the United States")
         3. Fishbeck v. North Dakota, 115 F.3d 580,581 (8th Cir. 1997)
         4. Id.
         5. Id. at 580. See N.D. CENT. CODE § 12.1-36-01 (1997) (stating that "any person who knowing separates or surgically alters normal, healthy, functioning genital tissue of a female minor is guilty of a class C felony."). The statute exempts medical correction of "an anatomical abnormality or [the] remov[al of] diseased tissue…." Id. Persons who perform female circumcision on a minor commit a felony and face a serious penalty. Id. § 12.1-32-01 (1997). Violators face "am maximum penalty of five years' imprisonment, a fine of five thousand dollars, or both." Id.
         6. Fishbeck, 115 F.3d at 581.
         7. Id.
         8. Id. at 580. The Fourteenth Amendment states that "[n]o state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. Amend XIV, § 1.
         9. Telephone Interview with Jody McLaughlin, Local Coordinator, Bismark Chapter, National Organization of Circumcision Information Resource Centers of North Dakota (NOCIRC) (Aug. 30, 1997).
         10. Id.
         11. Id.
         12. Id.
         13. Id.
         14. Telephone Interview with Jody McLaughlin, supra note 9.
         15. Fishbeck v. North Dakota, 115 F.3d 580, 580 (8th Cir. 1997)
         16. Id.
         17. Id. at 580. A "public policy" interest "is not sufficient to create a case or controversy for purposes of Article III of the Constitution." Id. at 581 Additionally, there was no certainty that Ms. Fishbeck would give birth to another son who would by forcibly circumcised. Id. The court further stated that even if Ms. Fishbeck could have successfully demonstrated standing and damages, the Eleventh Amendment would have required the court to dismiss the cause of action. Id. The Eleventh Amendment prevents federal courts from hearing any suit in law or equity…prosecuted against one of the United States by Citizens of another state. . . ." Generally, a citizen cannot file suit directly against her own state in federal court unless the state consents. Sofamor Danek Groups, Inc v. Brown, 124 F.3d 1179, 1183 (9th Cir. 1997). Absent the state's consent, the court must dismiss the action. Autio v. Minnesota, 968 F. Supp. 1366, 1367 (D. Minn. 1997) stating that "the Eleventh Amendment proscribes federal actions against states unless consent to suit is unequivocally expressed").
         18. Fishbeck, 115 F.3rd at 581.

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