http://www.nytimes.com/2016/06/25/us/suit-challenges-us-over-abortions-and-birth-control-for-immigrant-minors.html
Here's the complaint: https://www.aclu.org/sites/default/files/field_document/06.24.16_doc._1_complaint.pdf I'm a bit confused by all of this, at least at first glance. According to the complaint, the federal government is required by a settlement agreement in an earlier case to provide emergency and routine medical care, including family planning services, post-sexual assault care, and abortions, to unaccompanied immigrant minors in its custody. The Office of Refugee Resettlement (“ORR”) issues grants to private entities, including a number of religiously affiliated organizations, to help provide these services. And the ORR allegedly permits the USCCB and its subgrantees, such as Catholic Charities, to perform these services *without *providing information about, access to, or referrals for contraception and abortion. The ACLU has brought an *Establishment Clause *claim to challenge this religious exemption. The principal allegation (perhaps because of standing constraints) appears to be about the use of taxpayer $$ for religious activity. That's a bit odd, though, since what the ACLU is really complaining about is not any religious activity as such (e.g., proselytizing, prayer) by the subgrantees, but instead the *failure *of grantees and subgrantees to offer legally required services. I would think, then, that the principal issue is a statutory one--namely, whether ORR has the authority to exempt grantees from these legal requirements on religious grounds. (There's no hint on the complaint or the public accounts that the USCCB has sought or received a RFRA exemption, which would raise OLC "World Vision" questions.) If there any Establishment Clause questions here, they would appear to be different from a "use of funds for religious activities" concern, namely: (i) a possible *Larkin *delegation to the USCCB; and (ii) whether the third-party harms make this accommodation unconstitutional, on a Geddicks/van Tassell/Schragger/Schwartzman/Tebbe sort of theory. Such constitutional questions need only be reached, however, if the agency has a viable theory of why it has the authority to confer the exemptions in the first instance. Perhaps the ACLU doesn't have standing to raise the statutory challenge; but the government itself presumably will seriously consider that question in response to the suit. Thoughts?
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