SAN FRANCISCO (CN) – A federal judge indicated Thursday she would toss a lawsuit accusing the U.S. government of violating the Constitution by funding religious groups that care for unaccompanied immigrant children and trafficking victims but deny them access to abortions and contraception.
U.S. Magistrate Judge Laurel Beeler in San Francisco questioned whether the American Civil Liberties Union still has standing to sue over grant funding to faith-based groups like the U.S. Conference of Catholic Bishops, after discovery taken in the case revealed the group may not have been harmed.
Based on the ACLU’s allegations, Beeler found in November 2016 that the group had taxpayer standing under the Constitution’s Establishment Clause prohibiting government endorsement of religion. But after more than a year of discovery, she reconsidered her stance.
“There’s no evidence, it seems to me, of a denial of services” by faith-based grantees, Beeler said during the afternoon hearing, noting that program beneficiaries requesting abortion and contraception services are transferred to facilities that provide them.
Instead, she said, the harm is a delay in accessing those services, and being uprooted from support systems developed at facilities run by faith-based groups.
“You clearly have harm to the individual,” Beeler told two attorneys representing the ACLU. “The question is whether there is a harm to you.”
In its June 2016 complaint against the Department of Health and Human Services, the ACLU described then-17-year-old Rosa’s situation. The teen was hospitalized so she wouldn’t kill herself when Catholic Charities in Miami denied her access to an abortion. Rosa, the group said, became pregnant after one of her guides on her journey to the United States from Mexico raped her.
Upon her release from the hospital, Catholic Charities and His House, another faith-based grantee, refused to allow Rosa into their programs because she wanted an abortion.
The government eventually granted Rosa’s request for the procedure.
“No one could possibly think HHS [Health and Human Services] was endorsing an anti-abortion message here, because when the issue arose, we were facilitating these transfers to facilities that offer abortions and contraception,” Justice Department attorney Martin Tomlinson told Beeler Thursday.
Tomlinson also pressed the issue of the ACLU’s standing. “They were not able to find a single instance in which a dollar of taxpayer money was spent to deny abortion or contraception,” he said.
But Brigitte Amiri, who represents the ACLU, countered the government “is giving millions to religious organizations and imposes those religious beliefs” on program beneficiaries “to taxpayers’ detriment.”
In the process, she said, the government created a system in which accessing abortion and contraception services ends in “weeks of delay” and in “being uprooted from your support system.”
“That is quintessential endorsement,” she said, “and a symbolic benefit to these organizations.”
Health and Human Services awarded $10.7 million in grants to the Conference of Catholic Bishops and its subgrantees in fiscal year 2017, according to the ACLU’s brief. His House received $11.5 million that year, and Youth for Tomorrow, another religious organization, received $12 million.
Since Health and Human Services took over caring for unaccompanied minors in 2002, the number of children in the program rose from 13,625 children in fiscal year 2012 to 57,496 in fiscal year 2014. The number dropped to 40,810 children in fiscal year 2017, according to data from the agency’s Office of Refugee Resettlement.
Forty-five percent of children who came under the agency’s care in 2017 were from Guatemala, 27 percent from El Salvador, 23 percent from Honduras and 3 percent from other countries.
Most minors referred to the agency are eventually released to parents or sponsors in the United States. Those who aren’t released are sometimes transferred to group homes or foster facilities.