Brigitte Amiri, Reproductive Freedom Project

Earlier this month, the ACLU asked the federal government to ensure that religiously affiliated hospitals provide emergency reproductive health care as required by the Emergency Medical Conditions and Women in Labor Act and the Conditions of Partici…

A Catholic-owned hospital in Arizona recently made national headlines for demoting a nun for approving an abortion for a pregnant mother of four to save her life. While most of us would like to think this was an isolated incident, based on the Cath…

(Originally posted at ACSblog.)

Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government’s use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women’s health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn’t bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.

The government’s request relied principally on the 2007 Supreme Court decision in Hein v. Freedom from Religion Foundation, which barred taxpayers from challenging the funding of regional conferences hosted by the Bush administration to promote its so-called “Faith-Based Initiative.” Although that decision was quite narrow in scope and expressly refused to overturn decades of well-settled precedent, some advocates of government-sponsored religion have tried to use the Hein case — to varying degrees of success — to deny taxpayers their day in court. Fortunately, the federal court in Massachusetts rejected the government’s arguments and allowed our lawsuit to proceed.

It has been the law of the land for over 40 years that taxpayers have a fundamental right to challenge governmental expenditures to support religion. In recognizing that right, the Supreme Court looked to the core of the First Amendment, explaining, “Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Indeed, James Madison, the principal author of the First Amendment, believed that even a “three pence” tax to fund religious education would dangerously erode our precious religious liberty.

In last week’s decision, Judge Richard Stearns eloquently noted the importance of allowing taxpayers to bring these legal challenges: “I have no present allegiance to either side of the debate [over taxpayer standing], only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all."

Constitutional rights lack meaning if they are virtually impossible to enforce. It is unlikely a trafficking victim or a cash-strapped nonprofit organization that provides services to trafficking victims would come forward to sue the federal government. So unless taxpayers can bring cases like these, the courthouse gates will effectively be shut to any challenges to government-funded religious doctrine.

Although these technical and esoteric legal issues may seem like academic exercises, there is a lot at stake. More than 14,000 individuals, predominantly women, are brought into the United States annually and exploited for their labor, including those in the commercial sex industry. Many trafficking victims experience extreme violence and sexual assault at the hands of their traffickers. Some become pregnant as a result of rape and some contract sexually transmitted infections, including HIV. Contraceptive and abortion services are critical care for many trafficking victims. Last week’s court decision means that the ACLU can move forward with our challenge to ensure that these individuals receive the necessary care to safely rebuild their lives.

— By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief, and Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project

On Monday, a federal district court in Massachusetts ruled that an ACLU challenge to the government’s use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women’s health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn’t bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.

In Monday’s decision, Judge Richard Stearns eloquently recognizes the importance of allowing taxpayers to bring such legal challenges: "I have no present allegiance to either side of the debate [over taxpayer standing], only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all."

Constitutional rights lack meaning if they are virtually impossible to enforce. It is unlikely a trafficking victim or a cash-strapped nonprofit organization that provides services to trafficking victims would come forward to sue the federal government, and it has been well established for the last 40 years that taxpayers can challenge government-funded religion.

Although these technical and esoteric legal issues seem like academic exercises, there is a lot at stake. This week’s court decision means that the ACLU can move forward with our challenge to ensure that the 14,000 individuals who are trafficked into the United States under brutal conditions, including those who are raped, receive the necessary care, including reproductive health care, to safely rebuild their lives.

In the days following the senseless murder of Dr. Tiller, we were all stunned, heartbroken, and angry. In speaking with providers in the days and weeks following, we expressed our gratitude for their work, especially for persevering during such a difficult time. As one of the providers I spoke with said in response, "we are just trying to do what Dr. Tiller would want us to do: help women." That sums it all up.

My dad doesn’t believe in Father’s Day or Mother’s Day because he believes that every day should be Father’s Day and Mother’s Day. The same is true for today: every day should be National Day of Appreciation of Abortion Providers. Because every day, abortion providers around the country perform services that many will not; they do so in the face of adversity and violence (or potential violence); and they do so with compassion. Without their courage, commitment, and skill, the legal right to abortion in this country would be meaningless. So in addition to thanking abortion providers today, we should thank them every day.

Below are a series of reflections from my colleagues in honor of the men and women throughout the country who are the true torchbearers of liberty.

In a Family Way
By Lorraine Kenny, Public Education Director, ACLU Reproductive Freedom Project

I never thanked the doctor who performed my abortion more than 16 years ago. I didn’t even know his name. I was too overwhelmed by the fact that I was pregnant and not ready to have a child. This was not a planned pregnancy. I was a graduate student with years of work ahead of me, including field research that would leave me without a real home for a time; I was unemployed and in a relationship that was far from mature enough to handle parenting. But leaving all that aside, I now know that even if I had thanked my provider at the time, I would not have really known what I was thanking him for. Now I do.

I would have thanked him for giving me the chance to have my family.

I am now the mother of two beautiful girls, 7 and 12. They are healthy, happy, thriving children who are truly loved by me, their father, and a whole slew of aunts, uncles, cousins, a grandmother, an Abulita, and close friends. I know what my abortion provider gave me 16 years ago when I watch my husband help our daughters do their homework, practice violin, or make all of us a heart-shaped pink biscuit on Valentine’s Day morning; when I watch my 85-year-old mother’s face light up when one of my daughters plays in a concert or writes a story about visiting grandma or remembering grandpa; when I watch my daughters learn to swim, make each other giggle, or even when I watch them drive each other crazy or come home utterly defeated when one of them didn’t get into the school talent show or messed up in a concert despite hours of practicing.

I am grateful that today I have the opportunity to thank my abortion provider for my children and my family. I do not take these blessings for granted, nor do I take for granted the role he played in giving my family life.

My Name is Hayley Smith and I Work for Reproductive Freedom
By Hayley Smith, Assistant, ACLU Reproductive Freedom Project

I don’t always come right out and say what I do for a living. Sometimes, I don’t want to invite public scrutiny, anger, or judgment. Sometimes, I see abortion as a personal rather than a political decision. And sometimes, I have to admit that I just don’t want to get into the debate. So when asked what I do, I often say, "I work for the ACLU," or more generically, "I work on women’s rights."

Today, though, I think it’s important that we all go public. For the providers who endure the public scrutiny so that their patients don’t have to; who bear the brunt of others’ anger and judgment; who testify in courtrooms and legislatures to protect their patients’ rights and privacy. And for those who open their clinic doors every day to ensure that their patients can lead the lives they choose. The best way that I know how to thank you, providers, is to share in some of that responsibility.

Mom
By Dahlia Ward, State Strategist, ACLU Reproductive Freedom Project

I don’t remember when my mother first told me that she had had an abortion before my sister and I were born. It’s just something that I’ve always known. I do remember talking to my parents about going on birth control when I was just 16. I remember the look of worry that flashed across my mother’s face before she said "of course, I’ll make the doctor’s appointment for you." And I remember my father telling me that if I ever got "in trouble," that they would take me to the very best doctor so that I could "get it taken care of safely."

I grew up in a world of possibilities. Where the only question was what I wanted for my life and what path I would take. That I could decide to have an abortion, if I needed one, was never a question. And therefore, something I could take for granted.

So when asked to articulate what I would say to the men and women who work day in and out to make sure that I and so many other women have the ability to determine our own life courses, I turned to my mother (who else?) and asked her what she would say to the doctor who performed her abortion. She didn’t hesitate, "I would thank him. He gave me the ability to go on living the life I wanted. I didn’t have to take a detour that I wasn’t prepared for. It gave me and your father the time we needed to decide to have a family when we were ready. I can’t imagine my life any other way."

Neither can I. So thank you for being there for my mother when she needed you. And thank you for continuing to be there for me, in case I need you. And thank you for being there for women like me and my mom so that we can lead the lives we envision for ourselves and our families.

No, Thank You.
By Diana Kasdan, Staff Attorney, ACLU Reproductive Freedom Project

Often when I talk to abortion providers, or clinic managers or counselors, I’m calling them at home, or on their private cell, or in between appointments to ask if they could please, please, spare some of their free time (that they really don’t have). I’m usually asking them to help out in a case that we are litigating, often to serve — very publicly — as an expert witness. And while any other type of health care provider might not return these calls, or politely say, "I’m very, very busy; I can’t help with this," or "My hourly rate as an expert is $500," the folks I call say, "I’m happy to help," and then, often, embarrassingly, they thank me. They thank me for "fighting" to protect women’s access to abortion. And that’s when I feel silly. At that moment, usually all I can muster up to say is "No, thank you."

Today, stopping to reflect, and hoping to say it better, I’m no less stumped in finding words that fully express my constant amazement and gratitude–for your work, your generosity, your spirit, and most of all for your absolute dedication — often against unbelievable odds — to providing women the care they need. So, as I’ve been privileged to personally say to a few of you, but certainly not all of you, or enough of you — Thank you; no really, thank you.

A Sense of Safety
By Anastasia Taketomo, Assistant, ACLU Reproductive Freedom Project

At 25, I am relatively young in the spectrum of individuals who make up this movement. When I began my work in the Reproductive Freedom Project, it shocked me how often I was asked if I did this work because I had had an abortion. As my answer is no, the follow up question is always the same: then why do you? Early on, my answer was vague and uninformed. I would speak of friends of mine, or women I had met, or heard of second hand, who had benefited from abortion services. I would speak of feminism and equality in the abstract. The truth of the matter was that I did not have a true answer, although I was sure the work was crucial.

Perhaps I have the providers to thank for the innocence that caused my inability to answer such a seemingly simple question. Their endless work, extraordinary dedication, and unfaltering bravery have given women of my generation a sense of safety and a true understanding of choice. Because these individuals have been willing to come to work every day, despite the endless obstacles they face both professionally and personally, I have not lived a day in my 25 years without the security of knowing that I have the freedom to choose the best decisions for my body and for my life.

Working in this movement for the past 19 months has opened my eyes to the enormous challenges providers face: laws that derail and demonize the very core of their essential work, propaganda that threatens to sway public support, and the real threats and acts of violence they face. I can say now, with certainty, why I do this work. I do it because I am grateful that I have never faced the challenges I now know women and families face every day; I do this work because I want to ensure that future women and families have as much security and as many choices as possible; and, most of all, I do this work as a means to say "thank you" to the providers who put their own lives on the line to ensure that women like me stay safe and free.

It Matters
By Louise Melling, Director, ACLU Reproductive Freedom Project

I keep by my desk a picture of one of my first clients as a lawyer. Every day, she reminds me how important abortion providers are for women and their families.

When I first met Linda*, she was 18, newly married, and pregnant. She and her husband were excited about starting a family. And then they got difficult news. Their baby had open spina bifida. If they continued the pregnancy, their baby would need immediate surgery, would likely be paralyzed from the waist down (including organs), and would likely face infections and surgeries. Linda and her husband talked to the doctor. They talked to people with children with disabilities. They talked to one another. They took the time they needed. Linda then called to tell me they didn’t want to go through with the pregnancy. As she said, they were too young, their marriage too new. Linda needed help paying for the procedure; when legal avenues failed, to help we raised the funds to make her abortion possible. Linda got the abortion she needed. She had love and support from her family. And she had a funeral service for her son, whose place in her life she marks every year.

More than 16 years have passed. No year has gone by without my talking to Linda. She sends me pictures of the children she went on to have. I’ve met her family. We celebrated her 30 birthday together, joined by one of the nurses from her abortion.

We have this connection because it mattered, deeply, to Linda and her husband that they were able to make that decision. And it mattered that there was a doctor and a staff and a hospital willing to provide her care and compassion. And it mattered that she was supported, not judged. It mattered for reasons of love — of wanting, desperately, to be able to provide the home and support and love she wanted to give her child. Thank you, to providers everywhere, for making this possible, and giving Linda, and all of us, a chance at life.

*a pseudonym

Here Let Me Help You with That
By Jennifer Dalven, Deputy Director, ACLU Reproductive Freedom Project

I’ll never forget the one time I was privileged enough to meet Dr. Tiller. It was an unlikely meeting place for an abortion provider and an abortion rights advocate — an airport gate, waiting for a severely delayed plane.

I had, of course, heard about him for years. He was one of the luminaries of our field. Everyone knew he was courageous – besieged and attacked — he refused to stop caring for women. And I had heard tell of his compassion. I remember being on a panel and afterward a woman approached me and did, in this day and age, a most unusual thing. This woman, a stranger, introduced herself and told me about her abortion. She told me that at the end of her second trimester of a wanted pregnancy her fetus was diagnosed with a severe anomaly. She told me that even though she lived in a major city and was well connected to medical circles, she could not find anyone who was willing to perform an abortion for her. She told me about how desperate she was. She told me how she flew to Witchita. She told me about the individualized and compassionate treatment she received from Dr. Tiller and his staff. And she told me how grateful she was not only to have received the care, but for the support and the kindness with which it was provided.

So when I saw Dr. Tiller at the airport I gathered up my nerve to introduce myself. At the time, he had already been shot once. He was being persecuted and prosecuted by an anti-choice district attorney. I wanted to tell him how much I respected him and how grateful I was for what he did. I wanted to tell him about the conversation I had had with the stranger. But, we didn’t talk much about abortion that day. To my chagrin, my infant son decided to show how displeased he was about having to wait for a delayed plane by repeatedly (and I mean repeatedly) throwing his pacifier on the waiting area floor. We didn’t talk about abortion that day, because Dr. Tiller, this hero of our field, was too busy running back and forth to the bathroom to wash off my son’s pacifier.

Securing the Future of Abortion Care
By Sondra Goldschein, Director of State Advocacy, ACLU Reproductive Freedom Project

Medical students are a very busy bunch. (I should know; I married one.) And that is why the members of Medical Students for Choice are so inspiring. Each year at their national meeting, I provide the political lay of the land — explaining where we’ve fought legislation that bans abortion care; bills specifically designed to make it too expensive to open a clinic; and acts requiring health care professionals to make statements that they don’t believe or have no basis in medical fact. It’s a scary laundry list of different ways the state legislatures across this country try to interfere with a woman’s most personal, private medical decisions and her trusted relationship with her doctor.

But without fail, every year, medical students raise their hands and ask, "What can we do to help?" or "I’m going into anesthesiology, can I still fight back?" Despite their busy schedules, medical students have volunteered in South Dakota, where we successfully defeated a ballot initiative that would have banned nearly all abortion care. They’ve participated in lobby days at their state legislatures and in Congress. They are the future abortion providers and the medical community in which those providers will practice. I want to sincerely thank them for including political activism in their education. I have no idea how they find the time.

Thank You for Safeguarding Women’s Dreams
By Talcott Camp, Deputy Director, ACLU Reproductive Freedom Project

I thank abortion providers for saving women’s lives, and safeguarding women’s dreams. Many of us — not all of us, but many of us — cannot live out our dreams without the ability to determine whether and when to have a baby. Those dreams may include focusing on school for a certain number of years; waiting until we are with a life partner before starting a family; caring for our existing children in a way we can manage given our individual family; holding down a job because it is fulfilling and/or because we need to support our families; and caring for our aging parents. If we didn’t have contraception and abortion as a back-stop to end an unwanted pregnancy, our dreams would remain notions, and our lives would not be of our own making. It’s that simple: we may be able to live someone else’s dream, but we cannot live ours without the heroes who provide abortion care. Even if we never need an abortion, we construct our lives knowing that these doctors are there if ever we do. Our lives are not possible without them, and we could not possibly thank them enough.

Legislative Front Lines
By Autumn Katz, State Strategies Attorney Fellow, ACLU Reproductive Freedom Project

Dr. Tiller’s murder was a sober reminder of the constant intimidation and harassment that abortion providers endure. In addition to threats of violence from individuals like Scott Roeder, abortion providers, their staff, and their patients are harassed by picketers and protestors on a daily basis.

In my work as a legislative fellow with the Reproductive Freedom Project, I’ve seen that abortion providers also face discrimination at the hands of politicians, who pass laws and regulations to limit a woman’s access to reproductive health care and to deter doctors from providing such care. These laws do nothing to protect the health and safety of women. Instead, they make it more difficult for women to obtain the care they need and for doctors to provide such care. Indeed, 86 percent of the counties in the U.S. currently have no abortion providers.

The doctors who do provide abortion care in spite of all these obstacles deserve our utmost respect; they put their own lives on the line every day by providing women the health care they need. I hope that my work at the ACLU to defeat laws and policies that jeopardize women’s health and limit access to comprehensive reproductive health care in some small way honors the courage and dedication of abortion providers.

After six years of protracted litigation, women in Maricopa County Jail — you know, the one run by the infamous Sherriff Joe Arpaio — have finally (hopefully) secured their constitutional right to obtain an abortion. The case began in 2004 when a woman, referred to under the pseudonym Jane Doe, was in jail and sought an abortion. Jail officials denied her request, and told her that she had to go to court and have a judge order the jail to transport her for an abortion. She tried this route, but the court denied her request. That’s when the ACLU filed a legal challenge on her behalf, both to ensure that she receive a safe, timely abortion and to strike down Arpaio’s unconstitutional policy. We won. Arpaio appealed. And we won again. Arpaio appealed again, to the Arizona Supreme Court, which refused to review the decision. And Arpaio appealed again, this time to the U.S. Supreme Court, which refused to hear the case.

At that point, we thought the constitutional right to obtain an abortion for women in Maricopa County Jail was secure. But apparently the rule of law doesn’t mean much to Arpaio, "America’s Toughest Sheriff." Shortly after he exhausted all appeals, he blatantly defied the court’s ruling and refused to voluntarily transport another woman in his custody, referred to as Mary Roe, for an abortion. We intervened and ensured that Ms. Roe was able to obtain her abortion; we also filed a motion to hold Arpaio in contempt of court.

But Arpaio wasn’t done playing games with women’s constitutional rights. In the middle of negotiations on our contempt motion, he decided to impose a new obstacle on women seeking abortion care: in order to be transported, he demanded that women pay $300 a day up front in transportation and security costs. Sarah Poe, another inmate, could not afford to prepay these costs, and would have been forced to have a baby if we did not intervene. We helped secure her abortion, and we challenged the prepayment policy. In October last year, we won, again.

Last week we learned that Arpaio is not going to appeal this latest ruling. We hope that this is the end to a long chapter, and we particularly hope that women in Arpaio’s jail do not have to go through what Ms. Doe, Ms. Roe, and Ms. Poe went through: delay in obtaining care, which may have threatened their health, not to mention the anguish of thinking they may have been forced to remain pregnant and give birth against their will. As a result of their fight, Arpaio must now transport women in his facility who request an abortion, and he must transport them even if they can’t afford to pay the transport costs upfront. We’ve said "hopefully" this is the end because history has shown that Arpaio doesn’t seem to grasp the mandates of the constitution or abide by court orders. If Arpaio tries any new tricks, we stand ready to continue the fight.

(Cross-posted to Feministing and RH Reality Check.)

(Originally posted on Daily Kos.)

On Saturday, the White House faith advisory council task force released recommendations for government agencies that do business with faith-based social service groups. These recommendations touch on several issues related to a recently filed lawsuit by the American Civil Liberties Union. In that case, the ACLU asked a court to order the United States Agency for International Development (USAID) to release documents related to its funding of religious abstinence-only-until-marriage programs overseas, which will likely uncover violations of the constitutional guarantee of separation of church and state.

Interestingly, the faith advisory recommendations say that USAID is better suited than the Department of Defense for development work. Though perhaps correct, the shift of additional work to USAID only increases the need for additional oversight of its faith-based work given that USAID has a history of violating the Constitution. Indeed, the ACLU’s investigation was trigged in July 2009, when the Inspector General of USAID released a report (PDF) after auditing USAID’s faith-based grantees. The report came to startling conclusions about the misuse of government funds. For example, the Inspector General noted several instances of biblical references in government-funded curricula, and USAID itself admitted that some of the abstinence-only-until-marriage programs it funds "reflect a religious perspective and include religiously infused materials and religious references." One of the curricula includes an optional biblical verse for "reflection or memorization," the purpose of which is to show students that "God has a plan for sex and this plan will help you and protect you from harm."

As the Inspector General properly recognized, government funding of religious programs is a clear violation of the Constitution. Though there is a recent debate about the extent to which the constitutional guarantee of separation of church and state applies overseas, there can be no question that taxpayer dollars cannot be spent on religiously infused abstinence-only-until-marriage programs — regardless of whether there are taught domestically or abroad.

And USAID’s indifference to the concept of separation of church and state is not limited to abstinence-only-until-marriage programs. USAID is allowing one of its largest development grantees, World Vision, to use taxpayer funds to discriminate on the basis of religion.

Furthermore, taxpayer-supported religious indoctrination in abstinence-only-until-marriage programs is particularly unconscionable in the face of the global HIV/AIDS crisis: The government dollars that are being spent on religion come from dedicated HIV/AIDS prevention funds, so young people are learning biblical verses instead of valuable health information that could save their lives.

The Inspector General’s report details some of the constitutional violations, but that is where the report ends. We don’t know, for example, whether USAID instructed its grantees to stop using religious curricula, or whether USAID has developed policies to ensure that its grantees do not use government dollars to promote religion. To answer these questions, the ACLU filed Freedom of Information Act requests in July and September of 2009 seeking all documents related to the abstinence-only-until-marriage program. We have not received a single document in response to our request. Thus, the filing of a lawsuit became necessary.

In addition to recommending shifting development to USAID, the faith advisory’s recommendations also include some important suggestions, including ensuring that grantees do not use government funds to pay for religious instruction. We hope that this recommendation, coupled with the Obama administration’s promise to implement programs that are based on science, not ideology, will lead the administration to do the right thing: ensure compliance with the Constitution and implement government-funded programs that give youth the tools they need to make healthy decisions.