Supreme Court hears circumcision appeal

N.D. justices take up constitutional question

By Janell Cole forumcap@btinet.net

BISMARCK--If North Dakota criminal law protects girls from having their genitals subjected to unnecessary or mutilating surgery, so should healthy, normal baby boys be spared circumcision, attorney Zenas Baer argued to the North Dakota Supreme Court on Wednesday.

The justices quizzed Baer, who represents Anita Flatt of Hawley, Minn., about what is on trial in the case against a Fargo doctor, MeritCare Medical Center and the state of North Dakota.

Flatt and her late husband said they'd been given too little information before permitting their son to be circumcised one day after his birth in 1997.

The Flatts lost in a trial last year in the Cass County District Court after jurors decided MeritCare Dr. Sunita Kantak had given the Flatts sufficient information to make an informed decision.

The trial judge dismissed the state and MeriCare from the case, leaving the jury to decide only the claim against the doctor. Flatt now seeks a new trial.

"What's on trial?" asked Chief Justice Gerald VandeWalle. "Is it your intent to try whether circumcision is medically necessary?"

Baer said it is a matter of removing body part without any medical diagnosis.

Justice William Newman said he understood the practice of circumcision to have 'medical pros and cons'.

"Genital tissue is a constitutionally protected right,” Baer said.

The Flatts' allegation that the state's 1995 law banning female genital mutilation is unconstitutional, because it gives rights to girls not enjoyed by baby boys. That argument was thrown out before the trial started. East Central District Judge Cynthia Rothe-Seeger agreed with the assistant attorney general that the Flatts’ son had no standing to the question the law’s constitutionality.

That seemed curious to Justice Dale Sandstrom. "If this plaintiff doesn't have standing, who does?" he asked state Solicitor General Douglas Bahr, who argued in favor of the law. Sandstrom wondered how a law specifically protecting girls wouldn't be as suspect as one written to protect white children but not black or American Indian children.

"The legislative intent is pretty clearly to protect female children," Sandstrom said.

Sandstrom also asked the doctor's attorney, Angela Lord, why some of Flatt's expert witnesses were not allowed to testify as extensively as Baer wanted during the trial. Lord said they did testify. But, she said, those doctors believe circumcision should be outlawed and don't perform the procedure. So they have no relevant basis to testify on "standard of practice” regarding informed consent for the surgery.

The justices will later issue a decision.

Baer said a London filmmaker spend two weeks in North Dakota earlier this year working on a documentary about the high rate of 'circumcision--85-95 percent--in the Midwest. He said the Flatt case is being watched worldwide. Less than half of 1 percent of boys in the United Kingdom are circumcised, Baer said in his court brief.

Readers can reach Forum reporter Janell Cole at (701) 224-0830