On June 24, 2016, the American Civil Liberties Union of Northern California filed this lawsuit in the U.S. District Court for the Northern District of California. The ACLU sued the Secretary of the Department of Health and Human Services (HHS), alleging a violation of its First Amendment rights. Specifically, the ACLU argued that HHS violated the constitutional restriction on state establishment of religion by allowing the use of taxpayer funds, including the individual taxes paid by ACLU members, to impose religiously based restrictions on noncitizens.

The ACLU sought a declaration and permanent injunction, requesting that the court order HHS to ensure that grants by its component agency, the Office of Refugee Resettlement (ORR), be implemented without religious restrictions. The case was assigned to Magistrate Judge Laurel Beeler.

In its complaint, the ACLU alleged that HHS, in order to achieve its statutory obligation under the Homeland Security Act and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) to ensure the best interests of unaccompanied immigrant minors, authorizes ORR to administer federally funded grants to private organizations that provide care and custody for these minors. Some of these grant recipients are religious organizations, most prominently the U.S. Conference of Conference Bishops (USCCB), which allocates its grant money to many sub-grantee Catholic organizations throughout the country. The USCCB's sub-grantees, as well as other religious organizations running custody programs, object to contraception and abortion on religious grounds. They therefore refuse to facilitate minors' access to reproductive healthcare while in custody.

The ACLU further argued that, under both statutory law and because of the unique situation of women who end up in immigration custody, many being the survivors of sexual assault, the women are entitled to reproductive healthcare. If they try to access such services while in custody under USCCB's sub-grantees, however, the religious organizations deny them access and sometimes transfer them to other secular custody programs, even if the transfers are not in their best interest.

These restrictions, the ACLU alleged, violate not only the First Amendment (a violation which directly injures taxpayers) but also the Flores v. Reno agreement, and an ORR regulation implementing the Prison Rape Elimination Act (PREA) and the Violence Against Women Act (VAWA). The agreement and regulation mandate that the defendant ensures that minor victims of sexual assault in immigration custody can access family planning services, post-assault care, and abortions.

The parties proceeded with discovery. On September 26, 2016, the defendants filed a motion to dismiss for lack of jurisdiction, citing a lack of standing. The Magistrate denied this motion on November 29, finding the ACLU had standing as a taxpayer. 2016 WL 6962871 (N.D. Cal. Nov. 29, 2016).

On December 15, 2016, the USCCB sought to intervene as a defendant, which the court allowed on February 7, 2017. 2017 WL 492833 (N.D. Cal. Feb. 7, 2017). On February 1, the ACLU filed an amended complaint. In addition to the earlier allegations, the ACLU asserted that the defendants refused to help trafficking victims obtain reproductive health services and apply for visas for same-sex spouses.

On March 9, the defendants moved to transfer the case to the U.S. District Court for the District of Columbia. The defendants argued that the case had no meaningful tie to the Northern District of California, whereas the parties (including ACLU National), witnesses, and operative facts were located in the District of Columbia. In response, the ACLU argued that the case should stay in the Northern District of California where the ACLU of Northern California and its members were located, where unconstitutional activity had partly taken place, and where the court was already familiar with the matter.

Magistrate Judge Beeler held an April 27 hearing and issued an order the next day, denying the defendants' motion to transfer the case. She held that the defendants had not overcome the deference afforded to the ACLU's choice of forum. 2017 WL 1540606 (N.D. Cal. Apr. 28, 2017).

On October 6, 2017, the ACLU moved for a temporary restraining order (TRO), amendment of the complaint, and class certification. The ACLU was responding to the federal government’s March 2017 policies preventing shelters from taking any actions facilitating access to abortions, including transportation to medical appointments, without signed approval from the ORR Director. In response, the ACLU sought to add a new plaintiff (who was at a federally funded, secular shelter in Texas) as class representative for a nationwide class of pregnant unaccompanied minors, plus new class claims for injunctive relief due to violations of the minors’ Fifth Amendment right to privacy and liberty and First Amendment right to be free from compelled speech (by being forced to discuss their decision to have an abortion with a crisis pregnancy center). The ACLU also sought a TRO compelling the defendants to transport this plaintiff for a scheduled abortion on October 13.

Magistrate Judge Beeler held an October 11 motions hearing and issued an order. She denied all of the ACLU's motions, on the basis that the new plaintiff should bring a separate case – the plaintiff was not in the Northern District of California, none of the relevant events had happened there, and her claims were not "closely related" to the ACLU's Establishment Clause claim. (The ACLU has brought this case in the U.S. District Court for the District of Columbia as Garza v. Hargan, also in this Clearinghouse.) Judge Beeler also permitted several states (Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas) to file amici briefs. 2017 WL 4551492 (N.D. Cal. Oct. 11, 2017).

Discovery ended on December 22, 2017. Over the next seven months, the parties prepared motions for summary judgment.

On October 11, 2018, Magistrate Judge Beeler issued an order denying the ACLU's motion for summary judgment and granting the defendants' cross-motions for summary judgment. 2018 WL 4945321. Judge Beeler stated that there was no evidence in the record that any unaccompanied minor or trafficking victim who wanted an abortion or contraception during the time period relevant to this case was unable to obtain them, nor was there evidence that any grant funding was used for any religious purpose. And, while the ACLU claimed that harm results when minors seeking abortion are transferred to secular shelters, the ACLU could not base its claim on alleged harms that it did not bear itself. Thus, Judge Beeler did not find an Establishment Clause violation, and entered judgment in favor of the defendants.

The case is closed.

Ava Morgenstern - 03/19/2018
Sam Kulhanek - 03/15/2020


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