ACLU v. Sebelius

The following was written by ACLU of Massachusetts Legal Intern Elizabeth Volney.

On Thursday, December 3, 2009, Brigette Amiri, Senior Staff Attorney with the American Civil Liberties Union Reproductive Freedom Project, argued to Judge Richard G. Stearns (D. Mass.) that the doctrine of taxpayer standing remains a necessary tool for lawyers to challenge government spending of taxpayer money in ways that may violate the Establishment Clause of the First Amendment. The Establishment Clause prohibits Congress from promoting or financially supporting a religious idea which does not possess a secular purpose.

The ACLU of Massachusetts filed the lawsuit, ACLU of Massachusetts v. Sebelius (formerly ACLU of Massachusetts v. Leavitt), against the U.S. Department of Health and Human Services (“HHS”) on January 12, 2009, claiming that HHS violated the Establishment Clause by permitting the United States Conference of Catholic Bishops (“USCCB”) to impose faith-based restrictions on subgrantees of Congressional funds provided under the Trafficking Victims Protection Act (“TVPA”). Congress passed the TVPA in 2000 to help victims of human trafficking achieve self-sufficiency by providing them with expanded benefits and services, including medical services.

Until it ceded the power to distribute the congressionally provided funds to USCCB, HHS awarded grants to non-governmental organizations (“NGO’s”) who provided assistance to victims of human trafficking. Some NGO’s provided victims with referrals for abortion and contraception, and payment for contraceptives. Such referrals provided a necessary service for many victims who suffer from sexual and reproductive health problems, such as HIV, as a result of being trafficked. After HHS assigned USCCB the right to distribute the TVPA funds through subgrants, USCCB expressly prohibited subgrantee NGO’s from using the taxpayer-provided funds to provide referrals for abortion services or contraceptive materials, essentially requiring NGO’s who do not ideologically agree with USCCB to use the funds in line with Catholic doctrine.

HHS moved to dismiss the ACLU’s complaint, claiming that the doctrine of taxpayer standing did not give ACLU the right to sue HHS. Generally, taxpayers do not have the right to challenge the manner in which the government spends their tax dollars. Rather than allowing a taxpayer to broadly contest the government spending, the law usually presumes that a person exists whom the spending directly injured, more so than the average taxpayer. In very limited circumstances, however, a taxpayer does have standing to bring a suit against general government spending; one of those circumstances being violations of the Establishment Clause.

If HHS’s attempt to dismiss the case without reaching its merits is successful, the result will make it almost impossible for taxpayers to challenge government funding that is used to further religious doctrines. In many instances where the taxpayer standing doctrine is utilized it is because a direct victim of the government spending refuses to file a lawsuit against the government. In the present case, victims of human trafficking are often too scared to publicly file a lawsuit against HHS, and the NGO’s receiving the funds fear their grants will not be renewed if they take action against the department. This predicament leaves no directly injured plaintiff to effectively challenge USCCB’s restrictions on sexual and reproductive health, and, as Attorney Amiri argued, highlights the continued necessity of this doctrine.

Judge Stearns took Attorney Amiri’s and the HHS’s attorney’s arguments under advisement, and the ACLU awaits Judge Stearns’ opinion regarding this issue.