U.S. appeals court rejects lawsuit by circumcision foes

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ST. PAUL, Minn. — Opponents of male infant circumcision argue that the religious ritual conducted by Jews and Muslims, as well as the operation done under medical auspices, is harmful and tantamount to child abuse.

In a novel tactic to advance their cause, several crusaders against male circumcision have challenged a recent North Dakota law banning female genital mutilation (FGM), which is sometimes referred to as female circumcision. They contend that the law protecting girls should also protect boys based on the equal protection clause of the 14th Amendment. However, their legal strategy received a setback recently when a federal appeals court rejected their lawsuit.

The adverse ruling marks the second time the suit has been thrown out. It was first rejected in October by a federal judge in Bismarck on the basis that the plaintiffs did not have legal standing to challenge the law. On June 3, the U.S. Court of Appeals for the 8th Circuit, which had heard oral arguments during a May 19 session in St. Paul, affirmed the district court's decision.

"We're pleased with the decision and the quickness with which the court reached it," said Doug Bahr, assistant attorney general for North Dakota, during a telephone interview. "The 8th Circuit found that the parties did not have any standing because this lawsuit really has no impact upon them."

Bringing the lawsuit were Donna Fishbeck, suing as an individual and "as mother and natural guardian of her infant son, Jonathan Fishbeck"; Jody McLaughlin; and Duane Voskuil. McLaughlin is the publisher of a journal, The Compleat Mother, devoted to natural childbirth and related issues.

With Voskuil, McLaughlin heads NOCIRC-ND, a group opposed to circumcision that is attempting to enlarge FGM bans to include infant male circumcision.

Their attorney, Zenas Baer of Hawley, Minn., said he intends to appeal the case to the U.S. Supreme Court.

"I think the issue is whether or not — in the name of culture or in the name of religion — we can sit idly by and watch the children, those who have no ability to consent…mutilated by the surgical amputation of otherwise healthy genital tissue," said Baer.

Equating male circumcision with female genital mutilation is "a long stretch," said Dr. Sheldon Berkowitz, a pediatrician and mohel in Minneapolis.

"They're only similar in that they're done on the genitalia…[and] done on someone without their consent."

Berkowitz explained that FGM is done "to decrease sexual pleasure and prevent sexual activity for a long period of time.

"There is no medical reason I have ever heard about for doing female circumcision," he added.

Carol Hogard, a women's studies instructor at Minneapolis Community and Technical College, observed that "female circumcision" is a euphemism.

"It should really be called female castration," she remarked, and added that Minnesota passed a law against FGM in 1994, and congressional legislation banning the practice was signed into law last year by President Clinton.

In discussing the North Dakota statute proscribing FGM, attorney Zenas Baer contended that banning FGM while allowing infant male circumcision is an example of "cultural elitism, where we are passing judgment on the cultures and rituals practiced by the Mideast and African cultures, and not looking critically at our own culture."

But observers like Berkowitz and Hogard point to the qualitative differences between the two practices.

"This is not culture, it is torture," Hogard said regarding FGM. "Once it's done women have serious health problems for the rest of their lives."