DONNA FISHBECK v STATE OF N. DAKOTA
United States Court of Appeals
for the eighth circuit
_____________
No. 96-4038ND
_____________
Donna Fishbeck, Individually, *
and as Mother and Natural *
Guardian of her Infant Son, *
Jonathan Fishbeck; Jody *
McLaughlin; and Duane Voskuil, *
Ph.D., *
* On Appeal from the United
Appellants, * States District Court
* for the District of
v. * North Dakota.
*
*
State of North Dakota, *
*
Appellee. *
___________
Submitted: May 19, 1997
Filed: June 3, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
North Dakota has a statute that makes so-called "female
circumcision," perhaps better described as female genital
mutilation, a crime. N.D. Cent. Code 12.1-36-01. Circumcision
of males, however, is not prohibited. The three plaintiffs in this
case contend that the State is in violation of the Equal Protection
Clause of the Fourteenth Amendment on account of this distinction.
The plaintiffs are Donna Fishbeck, Jody McLaughlin, and Duane
Voskuil. McLaughlin and Voskuil have no standing under any theory.
Their convictions are sincere, and they are knowledgeable on the
subject, but they have no personal stake in the outcome of this
case, one way or the other. They are simply interested in the
subject as a matter of public policy. This sort of interest is not
sufficient to create a case or controversy for purposes of Article
III of the Constitution.
Donna Fishbeck has a more personal kind of interest. After
the effective date of the statute, her baby son was circumcised.
The father consented to this procedure, but Ms. Fishbeck did not.
She believes that the circumcision of males is just as wrong as
that of females, and that the State is at fault for not treating
the two procedures equally. Still, we do not see that the
plaintiff Fishbeck has standing to invoke the federal judicial
process. The injury that her son has received, if it is an injury,
is in the past. Nothing that happens in this lawsuit can change
it. Similarly, there is no measurable likelihood that the
situation will recur in the future. It is always possible that
Fishbeck will have another child, that the child will be male, that
the father will again wish the child to be circumcised, and that
the mother will, for some reason, be unable to prevent the
procedure. The likelihood of these events' occurring, however, is
completely speculative. There is no way to predict that they will
occur, and no way to assess the likelihood of such an occurrence.
Accordingly, this case must be dismissed for lack of standing.
Even if we were to declare the North Dakota statute invalid because
it is underinclusive, and even if, in addition, as plaintiffs
request, we could enter some kind of decree that would criminalize
male circumcision, there is no assurance at all that the injury
claimed by Fishbeck, either on her own behalf or on behalf of her
son, would be redressed. The legal victory would be wholly
abstract, so far as Fishbeck is concerned. There is no
claim for damages, a claim that would apparently, in any case, be
barred by the Eleventh Amendment.(1)
The District Court(2) dismissed the case for lack of standing.
We agree, and the judgment is
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
We need not decide whether the Eleventh Amendment would bar the relief sought in this case,
because we are dismissing it for lack of Article III standing.
(2)
The Hon. Patrick A. Conmy, United States District Judge for the District of North Dakota.