A federal court in Massachusetts has ruled that the U.S. bishops’ contract with the federal government for the provision of counseling support for trafficking victims was unconstitutional.

In a further blow to the free exercise of church-affiliated institutions, Judge Richard Stearns ruled on March 23 in favor of the American Civil Liberties Union of Massachusetts, which challenged the constitutionality of the federal government’s contract with the U.S. Conference of Catholic Bishops’ Migration and Refugee Services (MRS).

The court ruled that the Department of Health and Human Services contract with MRS violated the Establishment Clause of the U.S. Constitution.

The HHS contract stipulated that the Church agency’s subcontractors could not provide contraception or abortion services to trafficking victims. Counseling and other outreach services are provided through the Trafficking Victims Protection Act.

Judge Stearns deemed the contract unconstitutional because the taxpayer-funded services imposed religiously based beliefs on recipients who may not share them.
Barring the use of federal funds for “abortion services and contraceptive materials is not a subject of truly voluntary participation; subcontracting organizations and trafficking victims cannot ‘opt out’ of the restriction without shouldering the financial burden of doing so,” Stearns contended.

“[T]he government defendants’ delegation of authority to the USCCB to exclude certain services from government funding ‘provides a significant symbolic benefit to religion,’ in violation of the Establishment Clause,” he stated.

Sister Mary Ann Walsh, a spokeswoman for the U.S. Conference of Catholic Bishops, suggested the conference might appeal the decision, but offered no formal response to a decision likely to have broad ramifications for other Church contracts with federal and state governments.

Richard Garnett, a leading constitutional scholar at the University of Notre Dame, strongly criticized the ruling in a March 27 post on National Review.

“it would not violate the Establishment Clause for the government to decide its human-trafficking funds should not be used, by anyone, to pay for abortion- and contraception-related counseling. To understate the matter, the government is not required to subsidize or support abortions, and opposition to abortion is no more suspect because many religious believers oppose it than opposition to human trafficking is suspect because many religious believers oppose it,” said Garnett.

“Next, it is not the case that the religion-inspired policies and practices of institutions that receive public funds somehow become, for constitutional purposes, the government’s own policies. If Judge Stearns were right (and he certainly is not), then it is unconstitutional for a Catholic school that receives some special-education-related or school-lunch funding for low-income students to have morning chapel or First Communion classes. If Judge Stearns were right (and, again, he isn’t), the federal government would be required to forbid any religious institutions that participate in “charitable choice” and “faith-based initiative” programs from taking religious-mission into account when hiring,” Garnett added.

The bishops and their religious and political allies have opposed legal challenges like the Massachusetts Civil Liberties Union, charging that special interests promoting abortion rights or same-sex “marriage,” combined with an intolerant brand of secularism, seek to remove religious witness from the public square.

Last year, long before Judge Stearns’ ruling, HHS declined to renew its multi-year contract with MRS. The USCCB protested the decision, and The Washington Post subsequently reported that political appointees at HHS had intervened to prevent a renewal of the contract, leading the agency to award contracts to less-qualified applicants.

’Patently Absurd’

In a Sept. 30 letter to his brother bishops, Cardinal Timothy Dolan, head of the U.S. bishops’ conference, confirmed that the MRS contract had not been renewed, and he blamed that decision on an “HHS requirement that USCCB’s Migration and Refugee Services provide the ‘full range of reproductive services’ — meaning abortion and contraception.”

In Cardinal Dolan’s view, “The position mirrors the position urged by the American Civil Liberties Union (ACLU) in the ongoing lawsuit challenging the constitutionality of MRS’ contracts as a violation of religious liberty.”

The cardinal noted that the agency’s decision was one of six actions at the federal or state level that posed threats to the free exercise of church-affiliated institutions. He also drew attention to the HHS contraception mandate, approved in an interim final rule in August.

However, Judge Stearns, who was nominated to the bench by President Clinton, contested any such assessment of his ruling against the HHS contract with MRS.

“To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others,” Stearns argued.

Steve Wagner, a former director of the HHS Human Trafficking Program who helped to develop the MRS program, expressed dismay at the federal court ruling.

“This is one of those cases which reminds us how important it is to appoint judges who are faithful to the Constitution,” he said.

“The idea that persons are being compelled to practice a religious faith because the federal government chooses not to fund abortions or contraception is patently absurd,” said Wagner, who had publicly criticized the HHS decision not to renew its contract with MRS.

Wagner added, “The federal government has a well-established prerogative to limit the scope of its programs, and that is what occurred in this case. Plus, it would have been illegal for the federal government to provide funding for abortions in this instance” because of the Hyde Amendment. “We are witnessing here the left hard at work developing a universal right to subsidized abortions and contraception.”

The federal court ruling comes at a difficult moment for the bishops, who are pursuing legislative and legal remedies to the HHS contraception mandate, which requires most church-affiliated hospitals, universities and social agencies to provide contraception, abortion drugs and sterilization in their employee health plans.

Since HHS Secretary Kathleen Sebelius approved the mandate on Jan. 20, provoking a political furor, President Obama offered an “accommodation” that would allow insurance companies, rather than religious institutions, to cover the co-pay-free services that Catholic institutions oppose on moral and religious grounds.

The bishops rejected the accommodation. A subsequent administration proposal suggested that if objecting religious institutions are self-insured, other independent entities, possibly pharmaceutical companies, would be required to cover these provisions.

The bishops have yet to respond to the most recent proposal, signaling the conference’s increasing impatience and unease with the downward spiral of relations with the Obama administration. Now, the Massachusetts federal court ruling adds another hurdle to future collaboration between Catholic social agencies and the federal government.

Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.