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Judge lets ACLU continue with lawsuit aiming to protect unaccompanied, immigrant minors' access to abortion, contraception

A federal magistrate last week ruled that the American Civil Liberties Union (ACLU) can go ahead with a lawsuit challenging federal contracts with religious affiliated organizations that deny unaccompanied, immigrant minors access to abortion and contraception, the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 12/2).

Background

Tens of thousands of undocumented and unaccompanied immigrants under age 18 are caught crossing the southern border of the United States each year. Refugee experts report that many of these minors have been sexually assaulted while in their country of origin or on their journey to the United States.

The Office of Refugee Resettlement (ORR) takes custody of unaccompanied immigrant minors and often places them with private organizations for several months before they are either deported or taken to a sponsor. In 2016, more than 30 private agencies received government grants to take in undocumented, unaccompanied immigrant minors.

ACLU reports that of those agencies, at least 11 are operated by the Catholic Church or other groups that oppose contraception and abortion care. In a statement last year, the Catholic bishops' conference and allied organizations said they would not help someone access health care services to which they object. They also said they would not agree to accommodations proposed by the federal government that would have paired the agencies with organizations that do not object to contraception and abortion care. Similarly, the religious groups rejected an accommodation under which they would have notified federal officials when a minor wants access to such services so he or she can be moved.

Overall, it is unclear how many minors arrive pregnant or become pregnant while in federal custody, or how many of the minors are placed with religiously affiliated agencies. Moreover, experts note that agencies might not report to federal officials some pregnancies and requests for abortion care among minors, because the federal government withholds coverage of abortion care except in limited circumstances. Private agencies may only be reimbursed for the cost of abortion care with federal funds in instances of rape or incest (Women's Health Policy Report, 6/27).

Details on lawsuit

In 2009, ACLU filed a lawsuit in Massachusetts challenging federal contracts with such organizations. A federal court ruled in favor of ACLU, holding that such government contractors could not deny minors access to the full spectrum of reproductive health care. However, according to the Chronicle, the lawsuit ended when the government's contract with the U.S. Conference of Catholic Bishops (USCCB) expired.

The government renewed its contract with USCCB in September 2015. In June, ACLU filed a new lawsuit in federal court in San Francisco. According to Brigitte Amiri, ACLU's lead attorney in the case, the lawsuit asserts that it is unconstitutional "to allow a religiously affiliated entity that gets missions in federal money to impose its religious beliefs on a vulnerable population by dictating what kind of health care services they receive" (San Francisco Chronicle, 12/2).

Specifically, ACLU contends that the government allocates federal funding to social agencies so that they may provide the full range of medical care, including birth control and abortion care, to minors in their care. However, by permitting some of those agencies to refuse to provide care based on religious objections, ACLU alleges that the federal government is violating the First Amendment.

In the lawsuit, ACLU pulled data from several thousand internal documents and emails to spotlight approximately 24 cases from the past five years in which pregnant minors requested abortion care. Some of the minors were eventually transferred to alternative caregivers, where they were able to obtain abortion care.

ACLU asserts that a 1997 court settlement, called the Flores agreement, mandates that the federal government ensure immigrant minors have medical care including "family planning services and emergency health care services." In addition, federal regulations enacted since that agreement require that unaccompanied minors who have been sexually assaulted while in federal custody have "unimpeded access to emergency medical treatment," provided a pregnancy test and be given "timely and comprehensive information about all lawful pregnancy-related medical services" (Women's Health Policy Report, 6/27).

According to the Chronicle, the federal government asked a federal court to dismiss the latest case, claiming that ACLU was not directly harmed by the contracts. As a result, according to the federal government, ACLU did not have legal standing to sue over the alleged misuse of federal funding.

Latest developments

U.S. Magistrate Laurel Beeler on Tuesday rejected the federal government's claim. In her decision, Beeler ruled that ACLU had the legal standing to sue based on precedent established in a 1968 Supreme Court decision permitting taxpayers to challenge federal subsidies for schools that held themselves out as religious.

Beeler cited similarities between the current case and the 1968 lawsuit. She explained that ACLU is similarly suing the federal government over spending that was approved by Congress for a particular purpose -- in this case, "to provide for the care and custody of all unaccompanied minor children" -- and allocated by ORR to religiously affiliated organizations, allegedly in unconstitutional violation of the United States' ban on government-recognized "establishment of religion" (San Francisco Chronicle, 12/2).