Keeping the Courthouse Doors Open to Protect Reproductive Health Care and Religious Liberty

(Originally posted at ACSblog.)

Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government’s use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women’s health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn’t bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.

The government’s request relied principally on the 2007 Supreme Court decision in Hein v. Freedom from Religion Foundation, which barred taxpayers from challenging the funding of regional conferences hosted by the Bush administration to promote its so-called “Faith-Based Initiative.” Although that decision was quite narrow in scope and expressly refused to overturn decades of well-settled precedent, some advocates of government-sponsored religion have tried to use the Hein case — to varying degrees of success — to deny taxpayers their day in court. Fortunately, the federal court in Massachusetts rejected the government’s arguments and allowed our lawsuit to proceed.

It has been the law of the land for over 40 years that taxpayers have a fundamental right to challenge governmental expenditures to support religion. In recognizing that right, the Supreme Court looked to the core of the First Amendment, explaining, “Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Indeed, James Madison, the principal author of the First Amendment, believed that even a “three pence” tax to fund religious education would dangerously erode our precious religious liberty.

In last week’s decision, Judge Richard Stearns eloquently noted the importance of allowing taxpayers to bring these legal challenges: “I have no present allegiance to either side of the debate [over taxpayer standing], only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all.”

Constitutional rights lack meaning if they are virtually impossible to enforce. It is unlikely a trafficking victim or a cash-strapped nonprofit organization that provides services to trafficking victims would come forward to sue the federal government. So unless taxpayers can bring cases like these, the courthouse gates will effectively be shut to any challenges to government-funded religious doctrine.

Although these technical and esoteric legal issues may seem like academic exercises, there is a lot at stake. More than 14,000 individuals, predominantly women, are brought into the United States annually and exploited for their labor, including those in the commercial sex industry. Many trafficking victims experience extreme violence and sexual assault at the hands of their traffickers. Some become pregnant as a result of rape and some contract sexually transmitted infections, including HIV. Contraceptive and abortion services are critical care for many trafficking victims. Last week’s court decision means that the ACLU can move forward with our challenge to ensure that these individuals receive the necessary care to safely rebuild their lives.

— By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief, and Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project