|
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
|