by Kira Shepherd
Under the federal government’s watch, refugee girls are being denied access to emergency reproductive health services that they desperately need. This is what the ACLU is arguing in their latest effort to keep overly broad religious exemption claims from infringing upon women’s rights and reproductive freedom. In late June, the civil liberties group filed a complaint charging the U.S. government with violating the First Amendment’s prohibition on establishment of religion by funding faith-based organizations that deny the unaccompanied minors they serve abortion and contraceptive access.
Since 2013, it is estimated that tens of thousands of unaccompanied children from El Salvador, Honduras, and Guatemala have crossed the border fleeing violence and poverty back home, or to be reunited with family members in the U.S. Experts estimate that as many as 60 to 80 percent of women and girls who make this journey are raped on their way to the United States. When unaccompanied minors cross the border, they are more often than not apprehended by federal agents and placed in shelters funded by the federal Office of Refugee and Resettlement (ORR). In 2014, nearly 57,500 unaccompanied minors were apprehended and transferred to ORR shelters.
ORR issues grants to private entities, including a number of religiously affiliated organizations, to care for migrant minors until they are placed with family members in the U.S. The United States Conference of Catholic Bishops (USCCB) is one of ORR’s largest religious-affiliated grantees; it received $10 million in 2014 alone to care for unaccompanied minors. The USCCB and all the organizations that they subcontract with, such as Catholic Charities, explicitly deny their clients access to contraception and abortion – even in cases where the clients were raped or sexually abused
Take for instance the story of one young refugee, mentioned in the ACLU complaint, who was raped by one of her guides on her journey to the U.S. The minor found out she was pregnant while in ORR custody at a Catholic Charities facility in Miami, and became distraught at the possibility that she would not be allowed an abortion. After threatening to kill herself if she could not get an abortion, she was admitted to a hospital for suicidal ideation. After leaving the hospital, she found out that the Catholic Charities she was staying at refused to take her back because she was seeking to terminate her pregnancy. His House, another religious organization that receives federal funding, refused to admit her as well. She was transferred to another facility and ORR eventually approved her request for funding for an abortion.
According to the ACLU, the federal government violated the constitutional guarantee of the separation of church and state by permitting the USCCB and other organizations to impose religiously based restrictions on the services unaccompanied immigrant minors received with taxpayer funds. In addition, the ACLU asserts that the federal government violated a number of statutes— including the Homeland Security Act, which states that government programs must fully protect the interests of unaccompanied immigrant minors — as well as an ORR regulation requiring all ORR-funded providers to provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare.
The ACLU started investigating the USCCB’s contraception and abortion refusals after hearing reports from workers at religiously affiliated organizations charged with caring for refugee teens. Workers claimed that some organizations were imposing their beliefs on minors by forcing them to leave the program if they needed reproductive care. After hearing these reports, the civil liberties organization made a Freedom of Information Act (FOIA) request for documents to determine the full scope of the problem and the government’s role. According to the documents they received, the government gave a few religiously affiliated organizations, such as USCCB and its sub grantees across the country, permission to refuse on religious grounds information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped. The government provides funding to USCCB through Catholic Charities to provide care for undocumented minors in a number of states across the country – including Arizona, California, Florida, New York, Texas, Virginia, and Washington.
This lawsuit is asking the court to step in and ensure that all religiously affiliated federal government grantees provide their clients with necessary and required care. If the ACLU wins, it will be a huge blow to religious organizations that have been imposing their religious views on refugee girls, denying them their reproductive rights. These organizations would have to start providing all mandated services to their clients or forgo federal grant funding. If written broadly enough, the suit could even stop religiously affiliated government grantees from practicing other types of discrimination based on their religious beliefs, such as anti-LGBTQ discrimination. The question that the court should answer in this case is whether the government violated the Establishment Clause by advancing and endorsing a particular set of religious beliefs. And the answer appears to be an overwhelming yes. By allowing USCCB to impose its religiously based restrictions on services offered through a federal program, ORR has essentially subsidized USCCB’s religious beliefs. USCCB utilized a government contract to further its religious belief that abortion and contraception are wrong and impermissible. As the ACLU argues, that violates the guarantee of neutrality towards religion enshrined in the Establishment Clause.
 Ester Yu-His Lee, Faith Groups are Trying to Block Emergency Contraceptive from Raped Migrant Children, ThinkProgress (March 5, 2015) http://thinkprogress.org/immigration/2015/03/05/3627571/faith-refugee-contraception/.
 GAO Report, Unaccompanied Children, HHS Can Take Further Actions to Monitor Their Care, available at http://www.gao.gov/assets/680/675256.pdf.