IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Donna Fishbeck, Individually, and as Mother
and Natural Guardian of Her Infant Son, Jonathan Fishbeck;
Jody McLaughlin;and Duane Voskuil, Ph.D.,
Plaintiffs,
v.
The State of North Dakota,
Defendant.
Complaint
Civil No. _________
I. PARTIES
1. Donna Fishbeck, a resident of the State of North Dakota, City of
Bismarck, is the mother and natural guardian of her son, Jonathan
Fishbeck, born on October 31, 1995, at St. Alexius Medical Center in
Bismarck, North Dakota.
2. Jody McLaughlin, a resident of Minot, North Dakota, is involved in
human rights issues, and more particularly, is involved in male and
female genital mutilation issues in the United States.
3. Duane Voskuil, Ph.D., a professor of philosophy and ethics at
Bismarck State College, is concerned with human rights and how the
passage of laws protecting only one gender from genital mutilation
violates the human and legal rights of the excluded gender.
4. The State of North Dakota passed Senate Bill 2454 codified at
N.D.C.C. 12.1-36-O1, entitled: Criminal Law -- Alteration of Genitals of
Female Minor -- Penalty, on March 17, 1995, which became law August 1,
1995.
5. Senate Bill 2454 Law North Dakota 1995 provides that "any
person who knowingly separates or surgically alters normal, healthy
functional genital tissue of a female minor is guilty of a class C
felony." A surgical procedure to correct an anatomical abnormality
or to remove diseased tissue that is an immediate threat to the health
of the female minor is allowed by the criminal provision.
II. JURISDICTIONAL STATEMENT
6. This action is brought pursuant to the Fifth and Fourteenth
Amendments of the United States Constitution. Jurisdiction is founded
upon 28 U.S.C. =A71331 and A71343(a)(3). Plaintiffs further invoke the
pendent jurisdiction of this Court to adjudicate state law claims.
III. BACKGROUND FACTS
7. Plaintiff Donna Fishbeck is the mother of a minor son Jonathan
born on October 31, 1995, at St. Alexius Medical Center, Bismarck, North
Dakota.
8. Jonathan Fishbeck is an individual as defined by the North Dakota
Constitution, Art. I, Sec. 1, and a person as defined by the United
States Constitution and the Constitution of North Dakota.
9. Plaintiff Donna Fishbeck did not want to have her son circumcised,
but Jonathan Fishbeck's father wanted the procedure done. Physicians at
the medical center were willing to do it. They gave no indication when
questioned by Donna that the procedure is harmful. She was led to
believe that prepucectomy of a normal, healthy foreskin was a medically
and morally acceptable procedure.
10. If the law passed by the North Dakota legislature protected males
from having their genital structures separated or surgically altered,
Jonathan Fishbeck would not have had his prepuce separated from his
glans penis and surgically removed without consent.
11. Jody McLaughlin testified before the Senate Committee hearing the
Senate Bill 2454 and advocated the abolition of both male and female
genital mutilation.
12. Duane Voskuil, Ph.D., ethics professor, Bismarck State College,
appeared in person and supplied oral and written testimony for
legislators on the harm of male and female genital mutilation, pointing
out that at least one form of female circumcision, sunna, i.e.,
amputation of the clitoral hood (prepuce), is less destructive to
females than is male prepuce amputation.
13. Support for the passage of a gender-neutral prohibition on
separation or surgical alteration of the genitals of minors for
medically unnecessary procedures was insufficient, and subsequently a
female-only genital mutilation bill was introduced and passed by
unanimous vote in both houses and was signed into law with support from
the North Dakota Medical Association and the North Dakota Board of
Medical Examiners.
14. There was no opposition to the bill as ultimately passed.
15. In North Dakota, approximately 80% to 90% of all male infants are
routinely circumcised without benefit of medical indication. The
circumcision is done purely for cultural reasons on non-consenting,
incompetent individuals who scream in protest.
IV. THE ISSUE -- CIRCUMCISION
16. Reallege all of the factual allegations contained in the
preceding paragraphs 1 through 15.
17. Current rates of circumcision of representative countries include
Australia 15%, Canada 20%, United States 60% and the State of North
Dakota 80% to 90%. In the United States alone, over 1.25 million infants
annually, more than 3,300 babies each day, 1 child every 26 seconds is
subjected to the unnecessary, painful mutilation without benefit of
medical indication or consent.
18. This actual surgery generates more than a quarter of a billion
dollars nationwide in unnecessary medical costs annually. Much of this
money is tax money paid to health care programs often in violation of
explicit statements that Medicaid will not pay for "unnecessary
routine infant circumcisions." Some estimate, when all costs are
considered (complications, reconstruction, circumcision revisions,
circumcision devices, etc.), circumcision is a one to five billion
dollar a year industry.
19. Routine male genital mutilation, as presently practiced in the
United States, began in the late l9th century to prevent masturbation.
The current rationalizations for routine infant male circumcision are
purely cultural and are not supportable by medical necessity or factual
evidence. Such rationalizations include: to make sons resemble their
circumcised fathers or peers; to supposedly improve hygiene (even though
the American Academy of Pediatrics says washing is equally effective
without the inherent of surgery); to cure phimosis (a condition that
cannot be diagnosed during infancy); to supposedly lower the incidence
of male infant urinary tract infections (though females have three to
four times the number of these infections as males and no scientific
studies show this to be a significant issue for this condition which can
be treated medically); to help prevent sexually transmitted diseases,
including AIDS (unproven); and to prevent cancer of the penis (yet
Denmark with a male circumcision rate less than 1%, has a lower rate of
penile cancer than the U.S.; and as many infants die of circumcision
complications as older men die of penile cancer).
20. Routine circumcision is surgery for cultural, not medical,
reasons. Routine circumcision continues in the United States because
parents and physicians have not been given adequate information
regarding the structure and function of the prepuce. Parents mistakenly
believe it is a medical issue and ask physicians for advice. Physicians
who likely have also been subjected to this ritual circumcision
frequently wish to protect the status quo and financial self-interests,
and therefore, do not, or cannot give adequate information to parents.
21. One does not need to be a medical professional to amputate male
prepuces. The North Dakota Attorney General has ignored requests to rule
on whether any parent can amputate his or her son's prepuce with
impunity at any age.
22. Parents have the right to consent to health care procedures for
the incompetent children, but not for elective surgeries for personal
whims (the removal of an ear lobe, e.g., would certainly be less
damaging to a child, and yet would certainly be a basis to prosecute a
parent for child abuse).
23. The prepuce is specialized tissue, highly innervated, richly
supplied with blood vessels, and uniquely endowed with stretch nerve
receptors. The prepuce contributes significantly to the sexual response
of the intact male which can be especially important for sexual
satisfaction in the mature male.
24. The amount of foreskin typically removed during a routine
circumcision, more accurately called, male genital mutilation, amounts
to approximately 50% or more of the skin covering the average adult
penile shaft. The foreskin removed during this mutilation is
approximately 12 to 15 square inches of highly innervated tissue of the
average adult male penis.
25. The infant male prepuce is normally attached to the glans penis
at birth and may not become retractable until teenage years. Infant
circumcision traumatically interrupts the natural and gradual separation
of the foreskin from the glans penis. Tearing the prepuce from the glans
penis, even when not part of an amputation, is considered child abuse by
many because it is extremely painful and there is no medical reason for
this painful procedure which harms the glans penis and can introduce
infection. Circumcision interferes with the natural anatomical
development of the penis {including that part which is not amputated),
since the circumciser tears the prepuce mucosa from the glans penis as
part of the amputation. This procedure scarifies, and eventually hardens
and desensitizes, the glans penis.
26. Routine infant male circumcision is a genital mutilation which
removes a vital, anatomical structure and functioning body part and
leaves permanent scarring of the shaft skin and the glans penis. It
changes the brain's structure by imposing pain on a primary pleasure
center. This procedure violates the physician's oath for the care of
patients: She/he must First Do No Harm.
27. The unnecessary mutilation of the genitals in the name of
tradition, custom, or any other non-pathologically related cause is not
acceptable to a conscientious health care professional. It breaches the
fundamental code of medical ethics. Children too young to give consent
must be treated as other incompetent individuals. Elective circumcision
procedures should be performed only when the individual affected can
give informed consent. Circumcisions done for medical reasons must meet
the same criteria as any amputation. If there is a question of medical
necessity, the amputation should only be done upon the appointment of a
guardian ad litem and with a court's permission.
28. All routine childhood circumcisions or separations of genital
structures are violations of fundamental human rights. It is the moral,
and often the legal duty of all, but especially professionals, to
protect the health and rights of those with little or no social power to
protect themselves. A circumcision is an assault on individual's
sexuality, and a violation of his natural right to an intact body.
V. FIRST CAUSE OF ACTION
29. Reallege all of the factual allegations contained in the
preceding paragraphs 1 through 28.
30. The North Dakota Female Genital Mutilation Legislation, N.D.C.C.
12.1-36-01, (SB 2454) violates the provisions of the United States
Constitution found in the Fourteenth Amendment and Fifth Amendment,
because it denies the infant male equal protection of laws and allows
deprivation of liberty and property and allows for the permanent injury
of a minor male without due process, while at the same time protecting
females from similar injuries.
31. The North Dakota Female Gentile Mutilation Law violates equal
protection guaranteed under the Federal Constitution because it provides
protection for females, but not males, without any rational basis for
this gender discrimination.
VI. SECOND CAUSE OF ACTION
32. Reallege all of the factual allegations contained in the
preceding paragraphs 1 through 31.
33. The passage of the Female Genital Mutilation Law (SB 2454),
N.D.C.C. 12.1-36-01, by the State of North Dakota violates the North
Dakota Constitutional guarantees of equal protection in violation of
Article I, Section 1 of the North Dakota Constitution, which guarantees
"all individuals are by nature equally free and independent and
have certain inalienable rights among which are those of enjoying and
defending life and liberty."
VII. THIRD CAUSE OF ACTION
34. Reallege all of the factual allegations contained in the
preceding paragraphs 1 through 33.
35. The passage of the Female Genital Mutilation Law (SB 2454),
N.D.C.C. 12.1-36-01, allows routine mutilation of the genitals of male
incompetents (i.e. all male babies) without their consent in violation
of N.D.C.C. A712.1-05-05, inasmuch as the use of force against the
incompetent child creates serious bodily injury, disfigurement, gross
degradations, and approximately 200 deaths per year in the United
States. Further, the routine mutilation of males is not only medically
unnecessary and unnecessary for safeguarding or promoting the child's
welfare, but quite the contrary: It is medically harmful because it can
impose serious long-term physical and psychological trauma, as well as
possible hemorrhage, infection, and death.
WHEREFORE, Plaintiffs pray for judgment of the Court as follows:
1. Finding that the passage of the law codified at N.D.C.C.
=A712.1-36-01 is unconstitutional as violative of the Federal Equal
Protection and Due Process Clause of the Fifth and Fourteenth Amendments
and is, therefore, unconstitutional.
2. Finding that the passage of the Female Genital Mutilation Law
codified at N.D.C.C. A712.1-36-01 violates the provisions of the North
Dakota Constitution, Article I, Section 1, and Article I, Section 23,
inasmuch as it violates the protection of individuals to be
"equally free and independent" and violates the individuals'
rights to their separate liberty, protection of their reputation, and
maintenance of their individual safety and happiness by discriminating
against infant males.
3. For such other and further relief as the Court may deem just and
equitable.
Dated: June 7, 1996
ZENAS BAER & ASSOCIATES
[signed]
Zenas Baer (#120595) |
Attorney for Plaintiffs
331 6th St., Box 249
Hawley, MN 56549
(218) 483-3372
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Not yet posted: Defendant's Reply and Motion to Dismiss
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Plaintiffs' Response to Defendant's
Motion to Dismiss
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