Judge: Bishops Must Refer Sex-Trafficking Victims for Abortion

National   |   Steven Ertelt   |   Mar 28, 2012   |   7:00PM   |   Washington, DC

A federal judge has issued a ruling concerning a grant the nation’s Catholic bishops received from the federal government and said the bishops can’t accept the funds because they do not refer victims of sex-trafficking for abortions.

The Obama administration, last year, revoked the grant to the bishops because they would not victimize women a second time with abortions.

Before that, since 2006, the health department has allowed the U.S. Conference of Catholic Bishops to limit the kind of services it offers women who are sex trafficking victims under the grant money it receives through the Trafficking Victims Protection Act. Sensitive to how women are exploited in the sex industry, the Catholic bishops prohibit any subcontractors from using the funds to pay for or promote abortions. Instead, the Catholic bishops provide comprehensive case management services to survivors including medical and mental health services.

The ACLU sued the Department of Health and Human Services saying it shouldn’t let the USCCB prohibit abortions for those women it helps deal with the aftereffects of sexual trafficking.

Although the nation’s Catholic bishops said the ACLU lawsuit is “without merit and an affront to religious liberty,” U.S. District Court Judge Richard G. Stearns ruled on March 23 that the government’s accommodation of the decision not to make abortion referrals is unconstitutional. Stearns, a Massachusetts judge, said the government violated the Establishment Clause of the First Amendment “insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church.”

Stearns also said is not about forcing the bishops to violate their pro-life views but about “the limits of the government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them).”

Richard Garnett, professor of law and associate dean at Notre Dame Law School, commented on the decision.

In a nutshell, Judge Richard Stearns ruled that it would violate the Establishment Clause for the federal government to cooperate with the nation’s Catholic bishops in the fight against human trafficking, because the bishops require that those with whom they sub-contract in this effort not to use any of the federal monies to pay for counseling or referrals for abortion and contraception. So, here’s the argument: Because the bishops’ requirement reflects their “religious” opposition to abortion and contraception, it amounts to an “establishment” of religion — and an unconstitutional delegation of secular authority to religious institutions — for the government to fund their anti-trafficking efforts. According to Judge Stearns, the policy of the bishops becomes, by virtue of their (generous, humane, and useful) cooperation with the government, the policy of the government, and the Constitution does not permit the government to have such a policy of imposing “religious” requirements as conditions of receiving government aid.

This is the wooliest of wooly-headed reasoning. For starters, it would not violate the Establishment Clause for the government to decide its human-trafficking funds should not be used, by anyone, to pay for abortion- and contraception-related counseling. To understate the matter, the government is not required to subsidize or support abortions, and opposition to abortion is no more suspect because many religious believers oppose it than opposition to human trafficking is suspect because many religious believers oppose it.

Next, it is not the case that the religion-inspired policies and practices of institutions that receive public funds somehow become, for constitutional purposes, the government’s own policies. If Judge Stearns were right (and he certainly is not), then it is unconstitutional for a Catholic school that receives some special-education-related or school-lunch funding for low-income students to have morning chapel or First Communion classes. If Judge Stearns were right (and, again, he isn’t), the federal government would be required to forbid any religious institutions that participate in “charitable choice” and “faith-based initiative” programs from taking religious-mission into account when hiring.

Garnett also bashed the pro-abortion magazine Mother Jones, which applauded the decision in an article titled, “Catholic Bishops Lose a Big Battle Over Contraception.”

“Actually, the loss here is by those victims of human trafficking whom the bishops and other religious institutions help, but — it appears — symbolic thumpings of Catholic prelates count for more than alleviating the very non-symbolic suffering of real, vulnerable people,” he said.

After the lawsuit was filed,

Bishop John Wester of Salt Lake City, chairman of the U.S. bishops’ Committee for Migration and Refugee Services, said the ACLU would only further exploit women by making the USCCB work with abortion businesses.

“Victims of trafficking — mostly women and children — desperately need access to the life-sustaining services provided under the program, such as food, shelter, legal services, coordination with law enforcement, medical screening, mental health care, safety planning, child care, employment assistance, and access to benefits upon eligibility such as refugee public benefits,” Wester explained.

“The ‘services’ that ACLU would force taxpayers to fund would assault, rather than advance, the dignity of these neediest people in our society,” he added.

Wester told LifeNews.com that the lawsuit would hurt, not help, trafficking victims and would violate the First Amendment religious liberty rights of the USCCB.

“It does not help trafficking victims to disqualify the Church from working with HHS simply because the Church will not provide abortion,” Wester said. “It also violates the longstanding principle of religious liberty to disqualify MRS or any other religious provider of social services from working with the government based on the provider’s religious beliefs.”

Wester said he expects the courts to side with the USCCB and cited the 1980 Harris v. McRae case that allowed the federal government to decline to pay for abortions for poor women. In that decision, the high court agreed that the law was constitutional even though it was in harmony with Christian and other religious views against abortion.

Through the Act, the federal government distributes funds to cover an array of services needed by the more than 14,000 individuals, mostly women, who are victimized by commercial sex trafficking.

Some of the women who are sold into prostitution become pregnant and many have abortions without abortion businesses doing any checking to find out if the abortion is pressured or coerced.

Wester said the services the USCCB offers to the women who are victims is “second to none.”

“HHS recognized this when it chose MRS to implement efforts to address the evil of human trafficking. MRS has efficiently provided top-quality human services, in cooperation with numerous faith-based and non faith-based agencies,” he said.