Court Rules Religiously-Based Restrictions in HHS Contracts with Bishops Violate Establishment Clause

Late yesterday a federal court in Massachusetts ruled [PDF] in favor of the American Civil Liberties Union in a challenge it brought against the Department of Health and Human Services over contracts with the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. When the ACLU first brought the case in 2009, HHS permitted the USCCB to prohibit the referral of victims of sexual assault to be referred for contraception and abortion services. Although HHS did not renew the USCCB contract last year, the ACLU proceeded with the case “to ensure that taxpayer dollars are not misused to impose religious restrictions on vulnerable trafficking victims that receive U.S. aid,” according to a statement.

Judge Richard Stearns agreed the case was not moot, and in holding that the policy permitting the Bishops to restrict trafficking victims’ access to reproductive health services violated the Establishment Clause, noted, “[t]o insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.”

Last year, Republicans and conservative activists contended that HHS’s decision not to renew the Bishops’ contract under the TVPA amounted to anti-Catholic bias by the Obama administration. Rep. Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee, who also did the Bishops’ bidding by holding hearings on HHS’s contraception benefit requirement under the Affordable Care Act, staged a show trial in an attempt to fan the flames of the supposed “war on religion.”

But Judge Stearns’ decision shows that the Bishops were not, in fact, entitled to use taxpayer money to refuse to refer victims of sex trafficking and rape for a full range of reproductive health services. That, Judge Stearns held, amounted to an impermissible government endorsement of a particular religious view because, although “[b]eliefs about the morality of abortion and the use of contraceptives need not be based on a religious viewpoint,” in this case “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” In other words, the Free Exercise Clause does, of course, protect one’s expression of deeply held religious beliefs. But the Establishment Clause prohibits the government from favoring particular religious beliefs, no matter how deeply held they are.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email