Constitutional Law

In Celebration of Roe: Meeting the Reproductive Health Needs of the Most Vulnerable

by Brigitte Amiri, staff attorney, ACLU Reproductive Freedom Project

Today, the 36th anniversary of Roe v. Wade is cause for celebrating that landmark victory for advancement of privacy and reproductive rights. Because of Roe, women have had the opportunity to build a better future for themselves and their families.  Roe has changed the very fabric of the social and economic life of our nation.  

We also know, however, that not all women have had the same opportunities. And the struggle for reproductive freedom continues.

Just last week, the American Civil Liberties Union filed a case that focuses on reproductive health care for trafficking victims – predominantly women brought into this country and forced to work through fraud or coercion. Many experience extreme violence and sexual assault at the hands of their traffickers. Some become pregnant as a result of rape; some contract sexually transmitted infections, including HIV. It stands to reason that this population has an acute need for reproductive health services – including emergency contraception, condoms, and abortion care or referrals.  Over the past two years, our federal government has instead turned a blind eye to these needs. It has allowed the United States Conference of Catholic Bishops (“USCCB”) to use taxpayer dollars to impose its religious beliefs on trafficking victims.

On January 12, the ACLU sued the Department of Health and Human Services (“HHS”) for violating the Establishment Clause when it granted a multi-million dollar contract to USCCB to provide services to trafficking victims here in the United States. Because USCCB does not provide direct services, USCCB proposed fulfilling the grant by subgranting the funds to various non-profit organizations that do provide social services to trafficking victims. 

The constitutional problem arose when HHS explicitly allowed USCCB to impose its religious beliefs on these subgrantees – and in turn the trafficking victims they serve – by prohibiting federal funds from being used for abortion or contraceptive referrals and services. Interestingly, when USCCB told HHS that it would impose this limitation on subgrantees, HHS pushed back, and asked USCCB if it would adopt a “don’t ask, don’t tell” policy to allow subgrantees to use federal funds to refer clients for reproductive health services. USCCB rejected that arrangement solely because of its religious beliefs. HHS acquiesced and awarded USCCB the contract. In doing so, HHS violated the Establishment Clause.

Lest anyone think this is case is an anomaly, last November we filed a Freedom of Information Act (FOIA) challenge in a similar case; this one involves federal funding to support reproductive health services for refugee and unaccompanied, undocumented teenagers. The press reported in July 2008 that four employees of a Catholic Charities in Virginia were fired after helping an undocumented teen in their care obtain contraceptives and later an abortion. Catholic Charities is one of many organizations that receive taxpayer dollars to care for youth who have come to the United States without their families, often fleeing war, violence and abuse, including sexual abuse. 

After the incident in Virginia, we learned that the government issued a policy that limited access to abortion for these teens. The incident also prompted Catholic Charities – which cares for these teens around the country – to reiterate its policy that prohibits their employees from providing or referring for abortion and contraception. Because they are undocumented and in the federal government’s custody these teens are wholly dependent upon our government and its contractors: they don’t speak English; they have no other means of support – financial or otherwise; and their mobility may be severely restricted by the government.  In practice, because of the policies at issue in this case, these teens do not have access to the full-range of reproductive health services.

We therefore filed a FOIA request to learn more about what happened with the Virginia teen and about the contours of the government’s policy. After nearly three months of waiting for a response, we asked a court to step in. We hope to soon receive the documents that will tell us more about the obstacles that our federal government and its contractors place on access to reproductive health care for these teens. We will use this information to figure out how best to advocate for change.

So while we celebrate the anniversary of Roe v. Wade and look forward to the new Obama administration – one that shows great promise for understanding the importance of reproductive freedom in all our lives – we must nevertheless continue our work to restore what has been lost during the Bush administration. Access to important reproductive health care for the most vulnerable populations is a good place to start. 

Full post as published by ACS Blog on January 22, 2009 (boomark / email).