## Facts

- The Trafficking Victims Protection Act of 2000 (TVPA) authorized the federal government to fund benefits and services for victims of severe human trafficking, including certain medical services.
- The U.S. Department of Health and Human Services (HHS) chose to operate the program through a single national “prime contractor” that would administer federal funds and coordinate service providers through subcontracts.
- HHS issued a solicitation for the prime contractor role.
- The United States Conference of Catholic Bishops (USCCB) applied and informed HHS that, based on its religious beliefs, it would not provide, or allow the use of contract funds to provide, abortions or contraceptive services, and would not allow referrals for those services using the program’s federal funds.
- HHS awarded the prime contract to USCCB. The contract included language excluding abortion and contraceptive services and referrals from the federally funded program.
- USCCB incorporated the same exclusion into the agreements it used with local subcontractors that delivered services to trafficking victims.
- The American Civil Liberties Union of Massachusetts (ACLU), on behalf of federal taxpayer members, sued HHS officials, alleging that the government’s adoption of USCCB’s religiously grounded exclusions as a condition on federal spending violated the Establishment Clause.
- The government argued that selecting USCCB followed neutral procurement criteria and that the arrangement was a permissible accommodation because subcontractors could use separate, non-federal funding to provide abortion or contraception outside the TVPA-funded program.
- By the time the court decided the cross-motions for summary judgment, the challenged prime contract had expired, affecting the scope of forward-looking relief.

## Issues

1. Whether the ACLU’s taxpayer members had standing under *Flast v. Cohen* to challenge HHS’s use of congressionally appropriated TVPA funds on Establishment Clause grounds.
2. Whether HHS violated the Establishment Clause by contracting with USCCB on terms that barred the use of TVPA funds to provide or refer for abortion and contraceptive services, reflecting USCCB’s religious beliefs and carried into subcontracts.

## Decision

- The court held that the ACLU’s taxpayer members had standing under the narrow *Flast* exception because the suit challenged a federal expenditure program authorized by Congress and alleged a specific Establishment Clause violation.
- The court granted summary judgment for the ACLU and denied the government’s cross-motion.
- The court held that the HHS–USCCB contract arrangement violated the Establishment Clause because the government allowed a religious organization’s doctrinal position on reproductive health services to shape the terms on which federal funds were administered and distributed.
- The court rejected the government’s characterization of the arrangement as mere accommodation, reasoning that the government did more than permit a religious entity to participate; it adopted a religiously based limitation as a binding condition on the federal program.
- Because the specific contract had expired, the court recognized limits on injunctive relief, but entered declaratory relief that the challenged arrangement was unconstitutional.

## Legal Principles

- Federal taxpayer standing may exist under *Flast v. Cohen* when a plaintiff challenges spending under Congress’s taxing and spending power and alleges that the expenditure violates the Establishment Clause.
- The Establishment Clause bars the government from structuring a publicly funded program so that the scope of covered services is set by religious doctrine rather than by neutral governmental criteria.
- Government may accommodate religious exercise in contracting, but it may not cede to a religious contractor effective authority to restrict the use of federal funds in a way that implements the contractor’s religious rules.
- A neutral procurement process does not cure an Establishment Clause problem if the resulting contract terms incorporate religiously grounded restrictions into the operation of a federal benefits program.
- Allowing service providers to use non-federal funds for excluded services does not, by itself, resolve an Establishment Clause violation where the federal program’s official terms and administration reflect a religious limitation.

## Conclusion

In *American Civil Liberties Union of Massachusetts v. Sebelius*, the district court held that taxpayer plaintiffs had standing to challenge HHS’s TVPA spending and that HHS violated the Establishment Clause by entering into a prime contract with USCCB that excluded abortion and contraceptive services and referrals on religious grounds and carried that exclusion into subcontracts, warranting summary judgment for the ACLU and declaratory relief despite the contract’s expiration.


American Civil Liberties Union of Massachusetts v. Sebelius, 821 F. Supp. 2d 474 (2012)