North Dakota: Donna Fischbeck v. The State of North Dakota
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. A1-96-64
PARTIES
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.
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.
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.
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.
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.
JURISDICTIONAL STATEMENT
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.
BACKGROUND FACTS
Plaintiff Donna Fishbeck is the mother of a minor son Jonathan born on October 31, 1995, at St. Alexius Medical Center, Bismarck, North Dakota.
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.
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.
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.
Jody McLaughlin testified before the Senate Committee hearing the Senate Bill 2454 and advocated the abolition of both male and femalegenital mutilation.
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.
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 MedicalAssociation and the North Dakota Board of Medical Examiners.
There was no opposition to the bill as ultimately passed.
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.
THE ISSUE – CIRCUMCISION
Reallege all of the factual allegations contained in the preceding paragraphs 1 through 15.
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.
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.
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).
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.
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.
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).
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.
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.
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.
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.
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.
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.
FIRST CAUSE OF ACTION
Reallege all of the factual allegations contained in the preceding paragraphs 1 through 28.
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.
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 thisgender discrimination.
SECOND CAUSE OF ACTION
Reallege all of the factual allegations contained in the preceding paragraphs 1 through 31.
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.
THIRD CAUSE OF ACTION
Reallege all of the factual allegations contained in the preceding paragraphs 1 through 33.
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 possiblehemorrhage, infection, and death.
Plaintiffs pray for judgment of the Court as follows:
WHEREFORE,
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.
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 and violates the individuals' rights to their separate liberty, protection of their reputation, and maintenance of theirindividual safety and happiness by discriminating against infant males.
For such other and further relief as the Court may deem just and equitable.
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