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Why the ACLU is suing over Catholic groups and abortions for unauthorized immigrants

Immigrants sit in their housing cell in the women's wing of an Arizona detention facility for unauthorized immigrants.
Immigrants sit in their housing cell in the women's wing of an Arizona detention facility for unauthorized immigrants.
John Moore/Getty Images

It sounds, in a way, like a conservative fever dream: the American Civil Liberties Union is suing the federal government to find out if Catholic Charities is providing abortions to immigrant teenagers — many of whom don't have legal status in the United States.

But that's essentially what is happening as of Monday, when the ACLU filed a Freedom of Information Act lawsuit to find out whether teenagers who are being housed in Catholic Charities–operated facilities (after being apprehended as unaccompanied migrants) have access to contraception and abortion.

The lawsuit illustrates the difficult position Catholic Charities (and its parent organization, the US Conference of Catholic Bishops) is in with the federal government right now.

It's working as a federal contractor to house unaccompanied minors. Its work here aligns with liberals: providing humane care to children and teenagers who came to the US alone, many of whom were the victims of sexual assault in their home countries or during the journey to America. But this also puts the group on the hook for following federal regulations regarding health-care access, which opens up another front in the ongoing culture war over whether and when institutional freedom of conscience for religious organizations can supersede individual rights to reproductive choice.

Why are these children and teenagers being taken care of in the US to begin with?

Most simply: Catholic Charities has a contract with the federal government to help house unauthorized immigrants in the United States who are awaiting court decisions on whether they can remain in the country.

The influx of unauthorized children and families into the United States slowed dramatically in the fall of 2014, but some are continuing to arrive. While they don't have legal immigration status when they arrive in the US, that doesn't mean they're automatically unauthorized immigrants.

Instead, they have to go through immigration court if they think they're eligible for asylum or for something called Special Immigrant Juvenile Status. Because the court process can take months or years, that means most immigrants will be here a while — even if they ultimately lose their cases and get deported.

The federal government has gotten much more efficient at placing unaccompanied children with relatives in the United States, but until it finds a family member to place a child or teenager with — and vets them to ensure they're not trying to traffic the child in the US — the children and teenagers are officially in the custody of the federal government, and the government is responsible for their care.

The Office of Refugee Resettlement doesn't operate facilities for unaccompanied alien children itself. Instead, it contracts out to a range of organizations to run care facilities for as many as 5,000 children and teenagers (though the government doesn't publish information about how many children actually are in the system at any given time). And one of those organizations, which operates facilities in at least seven states — including California, New York, and Texas — is Catholic Charities, which is run by the US Conference of Catholic Bishops (USCCB).

Under its contract with the government, Catholic Charities is obligated to provide needed day-to-day care to the children and teens in its custody — including health care. And since the children and teens are in full-time custody, if Catholic Charities refuses to give them access to care, there's nowhere else they can go.

Why is this coming to a head now?

The facilities that house unaccompanied migrant children are covered by a federal law called the Prison Rape Elimination Act. And there have been several allegations of sexual abuse and rape of migrant children in these facilities. (Senator Ted Cruz, in fact, called last week for a federal investigation into sexual abuse of migrant children.) So last December, the government proposed regulations under PREA, as it's obligated to do, regarding what happens if an immigrant minor is raped while in one of these facilities. As part of those regulations, the government proposed, the operator of the facility would be required to provide contraception or abortion access to a rape victim if she requested it.

The government asked for comments on the proposed regulations before finalizing them, and in February the USCCB wrote a letter that declared strong opposition to anything that would require it to allow a teenager in its care to get an abortion. Not only does the USCCB oppose providing abortions itself, but it opposes providing access to another provider — or even notifying the government that a teenage migrant in their custody is seeking an abortion so that the government can make other arrangements (like transferring her to another facility run by another group).

This letter piqued the interest of the ACLU, which had been hearing stories on the ground from social workers worried that the teenagers they worked with weren't getting access to abortions if they asked for them. One social worker told attorney Jennifer Podkul of the Women's Refugee Commission that she thought the facility was deliberately being slow in reuniting one of the teenagers with a relative, because it wanted to delay until she was no longer eligible for an abortion. But there's very little public information about what's happening right now in the facilities for migrant children, and the new regulations won't go into effect until June. So the ACLU is now suing the federal government, under the Freedom of Information Act, to find out what happens when a teenager in custody in one of these facilities asks for an abortion.

Why is this a big deal?

The lawsuit is probably getting more attention (especially from conservative media) because of the combination of two hot-button issues: abortion and immigration.

But immigration is something of a red herring here. Even if all migrants to the US were being kept in detention facilities and deported quickly, there would still be federal regulations regarding what happened if they got raped. And the fact that these facilities are being operated by Catholic Charities instead of a private prison company is an indication that Catholic Charities is aligned with the federal government in wanting to provide humane care to children and teenagers who've arrived unaccompanied.

The real issue here is whether a religious organization taking federal money needs to abide by the laws of the government or of its faith. From the ACLU's perspective, Catholic Charities is taking millions of dollars in federal contracts to care for migrant children and teenagers, and it's the nonprofit's job to carry out what the government wants — including abortion access. From the Catholic perspective, the government is yet again putting new requirements on existing contracts, and following those requirements would facilitate women getting abortions, in contravention of their faith and their organizational policy.