SAN FRANCISCO — The American Civil Liberties Union has filed a new lawsuit seeking to end the Church’s access to federal grants from the U.S. Department of Health and Human Services (HHS) that allow it to serve unaccompanied minors crossing the U.S. border.

The reason for seeking to shut down the Church’s involvement in the federal program: The U.S. Conference of Catholic Bishops (USCCB), and its network of Catholic Charities and other partners, refuse to facilitate abortion for minors. This is the ACLU’s second attempt to shut down the bishops’ conference’s partnership with the HHS once and for all through the courts, after a previous attempt only yielded partial success.

The ACLU of Northern California filed a lawsuit against the HHS at the U.S. district court in San Francisco on June 24, claiming that the federal government is legally required to provide unaccompanied minors crossing the border with “basic necessities,” including abortion. According to the ACLU, at least 11 of the more than 30 private agencies that received grants in 2016 to care for undocumented minors are affiliated with the USCCB or other religious groups that oppose abortion and contraception.

The ACLU argued that the HHS’ Office of Refugee Resettlement was “underwriting religious restrictions on vital government-funded services” and violating the First Amendment’s Establishment Clause by having a contract with the USCCB, which received close to $10 million in 2014, that excludes abortion.  

When unaccompanied migrants under the age of 18 are detained by federal authorities at the border, they are transferred into the Office of Refugee Resettlement’s custody in 72 hours. It then places them with private agencies until they are placed with a sponsor or deported to their countries of origin.

The USCCB’s grant from the HHS covers temporary and long-term foster care that it has provided to thousands of unaccompanied minors. It includes family reunification services as well as a host of culturally appropriate support services, including school placement, dental care and medical care. The USCCB’s partners carrying out the grant are located in Michigan, Texas, California, Washington, New York and Virginia.

The ACLU claimed that Office of Refugee Resettlement’s own regulations state the recipients of grants “must ensure that the victim receives timely and comprehensive information about all lawful pregnancy-related medical services.”

 

A Religious Exemption

However, it noted that the Office of Refugee Resettlement had carved out its standard family-planning language requiring abortion and contraception referrals in its cooperative agreement with the USCCB. This allowed the USCCB to assemble subcontractors that “will not provide, refer, encourage, or in any way facilitate, access to contraceptives or abortion services” as a condition of carrying out the grant.

The ACLU pointed out that Catholic Charities of the Archdiocese of Galveston-Houston explained in a grant application for 2014-2015 that its specialists help their clients “process the trauma of the rape, while also exploring the decision of whether to keep the baby or plan an adoption.”

It, therefore, claimed that unaccompanied minors were being harmed by the USCCB’s “religiously motivated denial of services.” The ACLU maintained one allegedly suicidal young woman was “kicked out” of her Catholic-affiliated shelter because she asked for an abortion. It said another young woman who became pregnant due to rape was not able to be placed at a Florida shelter near family members “because the two available shelters both had religious objections to caring for teens who seek abortions.”

But the standard operating procedure of the USCCB’s Office of Migration and Refugee Services, which oversees the implementation of a grant, is to inform the HHS that it has received a request for an abortion that it cannot fulfill. The HHS’s Office of Refugee Resettlement then places the young woman with a partner that will facilitate her request for abortion.

The ACLU admitted in its brief that the federal government did transfer the young women from the USCCB’s partners to other shelters and fulfilled their requests to abort their unborn children conceived in rape.

 

Pushing the Church Out

Dr. Grazie Christie, a policy specialist with The Catholic Association, told the Register that the ACLU already has what it allegedly wanted: Young women who sought out abortions did receive them. However, the Catholic physician added, the ACLU’s Reproductive Freedom Project has made clear — both in this case as well as in the cases it has brought against Catholic hospitals over their opposition to abortion — that its ultimate goal is to “cut off the charitable drives of other people” who don’t support abortion.

“They’re trying to bring that whole edifice down, without substituting anything in its place,” Christie said, pointing out the ACLU’s legal strategy is forcing the Church to divert a portion of its energies, time and funds away from its core social services to fighting for its rights in court.

“I don’t see the ACLU volunteering themselves to pick up the slack when Catholic Charities is gone,” she added.

Christie explained that the Catholic Church does not see either contraception or abortion as part of reproductive health care. When it comes to the healing of victims of sexual trauma, she said the standard of care for the Catholic physician is not to add to the violence done to the victim by taking the life of her baby, who is also innocent.

“The No. 1 thing women need if they’ve suffered a sexual trauma is compassion, tenderness, love, sympathy and real health care,” she said.

                       

Legal Precedent

However, the conflict between the ACLU and the Catholic Church largely centers around the ACLU’s bid to restrict the scope of constitutionally protected freedom of religion merely to freedom of worship, and not to Catholic service to others.

“The conflict is not coming over whether someone can go to Mass; it’s over whether they can go out and serve while still being Catholic,” Eric Rassbach, a senior attorney with the Becket Fund, a public interest law firm that specializes in religious-liberty cases.

The ACLU’s contention that the HHS cannot have a religious-freedom exemption in its contracts may not stand up to existing precedent. Rassbach pointed out that the U.S. Supreme Court upheld the constitutionality of religious accommodations in government contracts with a 1987 case called Corporation of Presiding Bishop v. Amos.

The Supreme Court recognized the government can accommodate the beliefs of different religions, without turning it into the official state religion.

“Does anyone really think that allowing Catholic entities to avoid providing abortions to minors turns Catholicism into the official religion of the United States?” Rassbach said.

This is the “second bite at the apple” for the ACLU, Rassbach pointed out. The ACLU resurrected a legal challenge that its Massachusetts chapter brought in 2009 against the HHS over a different contract with the USCCB involving a grant for services to trafficking victims. In the midst of this battle, the HHS Department decided not to renew the grant when it expired in October 2011, despite its proven success, without giving a reason. Instead, the HHS stated, in written instructions to groups requesting grants through the Trafficking Victims Protection Act, that “strong preference” would be given to organizations that offer referrals for the “full range of legally permissible gynecological and obstetric care” — a veiled reference to abortion and contraception.

A Washington Post investigation later revealed senior HHS political appointees threw out the strong recommendations of an independent review board to renew the USCCB’s contract and disqualified the USCCB over its refusal to reimburse groups that referred victims for abortion and birth-control services.

 

Vigilance Required

The ACLU, nevertheless, continued to pursue the case and obtained a favorable decision from a federal judge in 2012. However, it did not get the precedent it wanted to bar the USCCB’s future involvement in HHS programs: The federal appeals court vacated the ruling the following year, on the basis that the USCCB’s contract with HHS had already expired and the case was moot.

The HHS Department did not return the Register’s request for comment.

The USCCB also declined to comment on the case.

If the ACLU succeeds once again to pressure the HHS into not renewing the USCCB’s contract, it may still run out of time to obtain the precedent it wants. The USCCB’s contract with the federal government to serve unaccompanied refugee minors expires in September.

Rassbach counseled vigilance.

He said, “It behooves people who care about Catholic social services to get involved and make sure the Church’s interests are being protected.”

 

Peter Jesserer Smith is a Register staff reporter.