An Accommodation Too Far

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8 Responses

  1. Marc DeGirolami says:

    Hi, Caroline. I disagree with your view of this case, principally because I disagree that awarding the grant to any particular organization means that the government is adopting that organization’s views as its own. But set that aside for the moment. Do you also think that if the federal government decided that it was not going to award the grant to any organization which would provide abortion services — religious or secular — then it would violate the Establishment Clause? Does the government violate the Establishment Clause unless it uses the moneys allocated for these programs to pay for the abortions of victims of sex trafficking?

  2. Joe says:

    “Abortion services” in the mind of some, btw, includes use of morning after pills, which work like regular birth control pills and various studies suggest does not work after implantation.

    What if the failure to provide abortion services includes in cases of rape or serious health threat (defined by physicians, not religious institutions)? Or, if that isn’t covered by “rape,” (see “real rape”), to young minors such as those under fifteen for which serious health concerns are at issue?

    Why is abortion singled out as some “line” here, especially if there aren’t exceptions for such cases and with the note that morning after pills in these debates are repeatedly labeled (quite arguably wrongly) as “abortion”? Contraceptives to most Catholics even are seen as acceptable & some abortions also are, so the “line” to me seems somewhat arbitrary. Some religious beliefs are singled out. That is a EC issue to me.

    The opinion is convincing though there is a way to supply funds via an original program that has various options. Here, a general program is diminished and burdened by a religious exemption. A “requisite service” includes an abortion for some that the religious institution here denies them.

  3. Marty Lederman says:

    Caroline: I’m not sure it’s accurate to call this a case of religious accommodation. That’s how we’d have to analyze it if the statute, or the reg, required contractors to provide abortion and contraception and HHS had then granted the USCCB an exemption from that requirement. (Whether such an exemption would be a constitutional accommodation under such circumstances would depend on whether and how the denial of a contract would burden USCCB, and on the nature of the burden on third parties.)

    Your post assumes the USCCB could not “fulfill basic grant requirements,” since “the requisite services . . . in this case include[] contraception and abortion.” Thus, you write, the USCCB was “simply not qualified.” If you were correct about this, then HHS would indeed have granted the USCCB an exemption from an otherwise applicable requirement, and the analysis noted above would apply.

    But if the DOJ brief on appeal is accurate (I have no independent knowledge), neither the statute nor the reg at the relevant time required HHS, or its contractors, to provide abortion and contraception services. HHS concluded that it would have *preferred* to give the contract to an organization willing to provide such services — but no such prospective contractor applied. In such circumstances, I don’t quite see what the Establishment Clause issue is. (It’s not an EC violation, of course, for Congress not to require, or even to forbid, provision of such services.)

    As of 2011, HHS has reverted to a grant rather than a contract-based program, and has provided that its grants can be used for contraceptive and abortion services.

  4. Marty Lederman says:

    I should add that in its brief on appeal, the ACLU contends that “the law *dictates* that some types of trafficking victims are eligible to receive such [contraception and abortion] services.” This raises a legal (statutory) question that must be answered in the first instance. If the law *requires* provision of such services to at least some trafficking victims (as the ACLU alleges but DOJ denies), then it may well be the case that HHS was simply *unauthorized by statute* to accept the USCCB bid (with its conditions) in the first instance — in which case one would not need to reach the constitutional question.

    But if DOJ is correct that the statute imposes no such requirement, then for reasons I discussed in my previous comment I’m dubious about the constitutional objection.

  5. Caroline Mala Corbin says:

    Good morning!

    How nice to start Monday with so many interesting comments.

    Marc: An accommodation goes too far if it relieves a burden that was not substantial to begin with (see, e.g. Texas Monthly), or if the burden imposed on others too great in comparison (e.g. Estate of Thorton v. Caldor). Here, the burden on religious groups of referring for contraception/abortion is indirect and attenuated at best, and the burden of denied access to emergency contraception/abortion to a sex trafficked girl pregnant from rape is direct and significant.

    Joe: Yes, thanks!

    Marty: You are right that I assume access to contraception/abortion is a core service for victims of sex trafficking. The statute may have provided otherwise, but that just seems wrong to me.

  6. Marc DeGirolami says:

    Thanks for the response, Caroline. I am not certain I understand your position, so forgive me for one more comment which attempts to summarize it.

    It seems to me that you believe that whether or not the statute requires referral to abortion providers (per Marty’s comment), that referral is required. But required by what? I think you mean that such referrals are constitutionally required. And I think that you are saying that the constitutional hook is the Establishment Clause. That is, if the government awards grants to groups which themselves refuse to refer the victims to abortion providers, the reason can only be one which would violate the Establishment Clause, and is therefore impermissible. Therefore, the government *must* award the grant to a group which provides these services. Further, if the government attempts to explain its decision to refer to such a non-referring group through the exemption strategy, that, too, is impermissible, because the burden of referral on the refusing organization is always negligible, and the burden on the trafficking victims is enormous.

    Is that an accurate summary of your position?

  7. Marty Lederman says:

    Caroline: I agree with you on the merits (as does the current HHS): these services ought to be provided for victims of trafficking. And if Congress had agreed with us and required such access, then when HHS allowed the USCCB not to provide such services, it would have *violated the statute,* even before one gets to the EC question you raise.

    But according to DOJ, the statute did not require such access. *If* that is correct (and the ACLU disputes it), then, as DOJ argues, if HHS itself would have retained the grant program, *the agency itself* could have declined to give $$ for such services, and for wholly secular, not religious reasons. And if that were case, then I have a hard time seeing how a constitutional issue is raised if the contractor makes the same exact decision but for religious reasons.

    Your argument appears to depend upon the assumption that the statute required access to such services, and thus HHS allowed the USCCB to disregard the statute. That would be a very different case (and one that would likely be resolved on statutory grounds, as I’ve explained). In this case, however, at least as DOJ describes it, there is no such statutory mandate. (I haven’t examined the statute closely enough to evaluate who’s right on this question.)

  8. Joe says:

    So, Professors Lederman and Corbin debate what the statute means, but one isn’t really sure what it means and the other is partially going what “just seems wrong” (which, sadly, isn’t always how these things are decided). Hmm.