A federal judge has dismissed the ACLU's attempt to block the government from delegating the care of immigrant unaccompanied minors and sex-trafficking victims to a Catholic group that opposes birth control and abortion and transfers those wishing to have an abortion to other shelters.

The American Civil Liberties Union of Northern California filed the lawsuit against the secretary of Health and Human Services and the U.S. Conference of Catholic Bishops, alleging violation of the U.S. Constitution's Establishment Clause: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

U.S. Magistrate Judge Laurel Beeler of the Northern District of California signed an order Thursday denying the ACLU's motion for summary judgment and granting the same motions from the defendants.

“Discovery has clarified that this case is not about the government or any religious organization denying access to abortion or contraception. There is no evidence in the record that any unaccompanied minor or trafficking victim who wanted an abortion or contraception during the time period relevant to this case was unable to obtain them,” Beeler said.

“While the ACLU claims that the government has provided millions of dollars in grant funding to the Bishops Conference while allowing the Conference to impose its religious beliefs and restrict access to abortion and contraception services to the unaccompanied minors and trafficking victims in its care, the record in this case does not bear this out,” Beeler added, finding “no evidence that any grant funding was used for any religious purpose or that any unaccompanied minor or trafficking victim who wanted an abortion or contraception was unable to obtain them.”

The order said the government, through the Office of Refugee Resettlement, has paid the Catholic Bishops Conference $170 million over three years to house and care for unaccompanied, undocumented minors: $42.9 million in 2015, $54.7 million in 2016 and $72.7 million in 2017.

Beeler repeated many times the phrase, “there is no evidence in the record.” No evidence of the bishops using the money to promote religious views, fund Catholic education or maintain churches, she said.

Beeler said, “The fact that certain government grantees like the Bishops Conference have religious objections to abortion has, in three or four instances, led to unaccompanied minors being transferred from one shelter to another.

“When an unaccompanied minor who is housed at a shelter operated by an organization with such an objection asks for an abortion, the government facilitates a transfer to another shelter that does not have objections to abortion so that the minor can obtain an abortion,” he said.

Of the four specific instances the order cited, each girl arrived pregnant. According to the court, two were raped on their journey to the U.S., and one pregnancy resulted from incest. No information was given on how the fourth became pregnant. Two of the girls were known to have been able to have an abortion procedure, Beeler noted. The fate of the other two was unknown.

At least one of them feared being transferred but was transferred anyway, and yet there was no evidence in the record that she was ever able to have an abortion, she said.

“The ACLU argues that this transfer process harms the minor because (1) the transfer delays her obtaining an abortion and (2) the transfer forces her to leave the support structure at her original shelter. No unaccompanied minor is a party to this case, and the ACLU—which brings its claim solely in its capacity as a taxpayer—cannot base its claim on putative harms that it did not bear itself.”

The order said that the Catholic groups gave women brochures explaining that the church opposes abortion and birth control, and mandating that those who wanted such services would have to move elsewhere. Beeler did not address the issue of intimidation or fear of speaking up in those circumstances.

“A reasonable person would not view the government, which facilitated access to abortion by transferring unaccompanied minors who want abortions to shelters where they can obtain them, to be endorsing the conference's anti-abortion views,” Beeler said.

Martin Tomlinson of the U.S. Department of Justice in Washington argued for the government. Robert Dunn of Gibson Dunn Crutcher in Palo Alto represented the Catholic Bishops. They did not respond to requests for comment.

The ACLU is working on a new strategy, according to its attorney, Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project in New York.

“We are deeply disappointed by the court's ruling. The government should not authorize religious entities to use their religious beliefs to harm others, particularly a marginalized group like unaccompanied immigrant minors,” Amiri said by email Friday evening. “We are considering all options to protect unaccompanied immigrant minors' ability to access reproductive health care.”