In 1994, CNN broadcast the partial genital excision of a young Egyptian girl who screamed in agony while millions of horrified viewers looked on. Historically known as female circumcision (FC), a growing number of vocal opponents refer to this practice by the more graphic, and in their view more accurate, label "female genital mutilation" (FGM). American novelist Alice Walker is an outspoken opponent of FGM, and it has been condemned by the World Health Organization, the International Medical Association, and the United Nations Children's Fund. Yet the practice continues in over 30 countries in northern and central Africa, in Muslim communities in Indonesia, Malaysia, India, Pakistan, Oman, South Yemen, and the United Arab Emirates, and in immigrant communities in the Philippines, Europe, and North America. The World Health Organization estimates that over 130 million women have been subjected to FGM, and the bioethicist Loretta Kopelman reports that each year an additional 4 to 5 million girls, generally from the age of 7 until puberty or marriage, undergo a procedure in which all or part of their genitals are surgically removed, often without anesthesia.

The Centers for Disease Control and Prevention estimate that over 168,000 women and girls in the U.S. are at risk for the procedure based on their ethnic origin. A number of states have adopted measures outlawing FGM, and in 1996 Congress enacted a law prohibiting the "genital mutilation" of females under the age of 18 in this country and directing the government to take action to eradicate the practice outside the U.S.

This federal law, though humane and well intentioned, needs to be assessed not just in terms of its stated purposes, but also its possible consequences.

In enacting the law, Congress recognized that it poses a potential threat to religious freedom. The law, as written, contains a finding that FGM is indeed practiced by "cultural or religious groups," but then declares that its banning does not violate religious freedom. This point is controversial. No one seriously doubts that some groups (including Christians and Muslims) identify the practice with their religion. Some Muslims, for example, claim that the Prophet endorsed the practice; others refute that interpretation. In Egypt the courts, which are empowered to interpret Islamic religious law, have ruled both ways, with the most recent decision in favor of those who dissociate the practice from Islam. However, in the U.S., Congress and the courts are precluded from interpreting religious law by the First Amendment's religious liberty clause.

If some groups insist that the practice is part of their religion, then the question turns to whether the State has a compelling interest that overrides the claim to religious liberty. In this regard, Congress identified the State interest in protecting the health and human rights of girls and women. This is addressed in the anti-FGM law with the assertion that the practice "often" results in physical and psychological harm and that it violates the human rights of those who undergo it.

The issue of harm is the strongest argument against FGM, and Congress is correct to focus on exactly this point. In order to protect other rights and interests, including religious freedom, the legislation needs to be carefully crafted.

The difficulty with the legislation as enacted is that female circumcision is not a single procedure but a variety practices, ranging from a ritualized drawing of blood all the way to infibulation (the removal of the clitoris, labia minora, part of the labia majora, and the stitching together of the wound, leaving only a small opening for passing urine and menstrual flow). As it is commonly practiced in parts of the Middle East and Africa, it generally includes at least the cutting of the clitoral hood and the removal of parts of the genitals (e.g., the clitoris, the labia minora). Because the definition of FGM in the U.S. legislation appears to embrace all these procedures, including ritualized drawing of blood, Congress regrettably cannot assert that FGM is always harmful. Indeed, as drawn, the law appears to preclude some practices on females that are arguably less harmful than unanesthetized male circumcision, even if it is acknowledged that in the vast majority of cases female circumcision is harmful — that it is, without question, female genital mutilation.

The statute, unfortunately, is drawn too broadly to advance legitimate State interests in protecting citizens from harm. Moreover, in our focus upon the many negative effects of FGM, we may be short-circuiting other moral debates that need a full hearing. Some Third World feminists, for example, recognize that female circumcision is a rite of passage that joins a girl to the community of women. This value, they suggest, can be supported by developing modified procedures, such as the ritual drawing of blood. The anti-FGM law, as currently framed, could not accommodate such a proposal.

What of the finding that FGM violates a woman's human rights? Among the many purposes of female circumcision is the diminishment of a woman's sexual pleasure (since the removal of the clitoris precludes orgasm), the control of her sexual and social life, and even a physical modification of her body to satisfy a male partner. In the United States, we find this abhorrent. The violation of human rights implicit in these purposes clearly justifies prohibiting any and all harmful forms of FGM, as is the intent of the legislation. But it remains unclear how a radically limited ritualized circumcision would violate a girl's rights any more than male circumcision violates a boy's rights by reducing his sensitivity or "marking" him.

It might be possible to divorce the ban on FGM from the question of religious freedom by arguing that the sole intent of the law is to protect females under 18 years of age. Or, if this seems ingenuous, one might argue that the free exercise of religion has commonly been limited in the face of identifiable physical harm. The difficulty is that either argument ultimately rests upon the identification of harm, without explaining why a ritualized drawing of blood should be prohibited when a boy's circumcision is not.

A final difficulty with the statute is that because it limits the flexibility of our response, we may subject some girls in the U.S. to greater risk than necessary. As argued recently by officials at a Seattle hospital, a radically modified form of FGM may protect girl children from being sent back to their homelands, while if they are forced to return, they face the more violent forms. This suggestion was met with cries of outrage by FGM opponents, and the law appears to prohibit such accommodation.

This critique of the U.S. law prohibiting FGM is clearly not intended as a defense of the practice. It is a plea that in addressing emotionally laden moral issues like this, care should also be exercised to protect other values and interests that are at stake. In the enactment of law, standards need to be developed and implemented that respect religious and cultural diversity, even when particular practices, such as most existing forms of FGM, may not in the end be permitted. Here, a coherent and articulate understanding of harm, both physical harm and harm to the rights of women and girls, could provide such a standard.

The current law fails to meet that standard. The legislation should be redrafted to protect girls and women from harm and to guarantee their full human rights, while also protecting other rights and enhancing our cultural sensitivity to diverse groups that constitute our nation and globe.