Whether a Catholic organization that receives money from a federal agency to aid trafficking victims may impose religious restrictions on reproductive services was up for debate before the U.S. Court of Appeals for the First Circuit. Also at issue was whether the case was moot now that the contract between the two has expired.

The court held oral argument on December 5 in the case, which stems from two appeals: American Civil Liberties Union v. U.S. Conference of Catholic Bishops and American Civil Liberties Union v. Sebelius.

The appeal challenged a ruling by Judge Richard Stearns of the District of Massachusetts in March that the U.S. Department of Health and Human Services violated the establishment clause by giving the U.S. Conference of Catholic Bishops the ability to impose religious-oriented restrictions on the use of the grant money.

Stearns granted the ACLU’s summary judgment motion against the HHS defendants and denied the HHS defendants’ summary judgment motion. He also denied motions by the bishops’ conference, an intervenor in the case, to dismiss and for summary judgment.

Stearns also rejected HHS’s argument that the case is moot because the agency’s contract with the bishop’s conference ended. He determined that the government hasn’t met its heavy burden to show that similar circumstances will not recur.

“There is simply no ‘absolute’ assurance that the challenged action will not be repeated….There is a second reason why the case is not moot: the ACLU is seeking, among other forms of relief, a declaratory judgment….’[A] federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunctions,’ ” Stearns wrote.

The ACLU in its brief argued that the establishment clause bars the government from authorizing the Bishops’ organization “to dictate what services trafficking victims should receive with federal dollars based on [its] Catholic beliefs.”

Although HHS has voluntarily stopped funding the Bishops’ organization during the course of the lawsuit, it has not “taken steps to ensure that the constitutional violation will not be repeated,” stated the ACLU’s brief.

The government in its brief argued, “Regardless of the motivation of a particular contractor, the Establishment Clause does not preclude agencies from deciding, on purely secular and otherwise lawful grounds, whether to approve a contract that provides for some secular goods and services but not others.”

The brief went on to state that the contract did endorse not a religion, nor accommodate any particular contractor’s religious views.

The government also asserted that that the case “is plainly moot” because the contract has expired. It also argued that the plaintiff lacks standing because the Supreme Court has held that taxpayer standing under the establishment clause occurs only if a statute requires federal spending challenged by the plaintiff.

The Bishops’ organization stated in its brief that the “government reasonably concluded that [the contract] would best serve the needs of trafficking victims” because it offered objectively the best overall plan “despite the limitation on abortion and contraception funding.”

Chief Judge Sandra Lynch sat on the panel with judge Juan Torruella and Senior Judge Joseph DiClerico Jr. of the District of New Hampshire, who sat by designation.

DiClerico asked the government’s lawyer, Lowell Sturgill Jr., an appellate lawyer in the Justice Department¹s Civil Division, to expound on the mootness issue. “What makes it absolutely clear that these circumstances will not recur?”

“We’ve made it clear [the case is] too speculative. The government has issued a new round of grants, and the U.S. Conference of Catholic Bishops has not received one of these grants,” Sturgill replied.

It’s not accurate to say the government’s choice of the Bishops’ organization constituted an enforcement of the Catholic Church’s religious beliefs, said Henry Dinger, a Boston litigation partner at Goodwin Procter who argued for the Bishops’ organization.

“The federal government has no obligation to pay for abortions. The contractors remain free to provide and to offer referrals. The trafficking victims had every right to obtain them. [The Bishops' organization] could not stop them,” Dinger said.

Lynch asked Dinger, “What do you mean that the trafficking victims had the right to obtain them?”

Dinger said that the government isn’t obligated to pay for abortions, and refusing to do so does not violate the establishment clause. “There must be an expenditure of taxpayer dollars in aid of religion. All of the money went to deliver secular services for trafficking victims. It is not the kind of violation of the establishment clause for which a taxpayer has standing to challenge.”

On the mootness issue, Brigitte Amiri, senior staff attorney at the ACLU’s Reproductive freedom project, said the government has awarded another contract to the Bishops organization during the appeal, which “once again allowed [it] to impose its beliefs on others.”

That grant is different from the organization’s prior contract to administer the trafficking victim funds.

Lynch noted that the contract at issue in the case expired. “This is not the government terminating the contract early to avoid facing litigation. The new contract has been issued under new criteria. The Catholic Conference is not the recipient of those funds,” Lynch said.

Amiri replied that the unconditional activity should be examined because “the trafficking victim act will continue to authorize funds.”

Sheri Qualters can be contacted at squalters@alm.com.