Anti-abortion group sues over denial of federal funding
Should taxpayer funds be used to help a “Christ centered ministry” buy and renovate a building in which it will offer Bible instruction and other services aimed at preventing abortion?
That’s the question at the center of a lawsuit filed by Care Net Pregnancy Center of Windham County, Vermont, after the U.S. Department of Agriculture rejected the center’s application for a federal building loan.
Care Net is a self-described “pregnancy resource center” that works to prevent abortion by offering an array of services, including free pregnancy tests, parenting classes, and counseling. The USDA denied the group’s loan request due to the “inherently religious” nature of some of its programming.
Care Net’s most troubling offering, as far as USDA officials were concerned, was a rewards-based learning program called “Learn to Earn,” wherein expecting parents had to take a certain number of parenting and Bible study classes in order to receive free baby supplies. (Care Net’s executive director has said the center has since suspended the Bible study requirement.) The center also offers, according to a brochure, a “bible centered program” called “Post Abortive Teaching and Healing” that “enables women to process their abortion-related experiences and emotions with the goal of healing and recovery.” In addition, Care Net conducts an abstinence-only sex-education class called “Why Am I Tempted?” or WAIT.
Backed by the Alliance Defending Freedom — an influential Christian conservative legal group — and a New Hampshire law firm, Care Net is arguing that the USDA’s actions violated the Fair Housing Act and its constitutional rights to free speech and equal protection under the law. In October, a federal judge ordered a USDA hearing officer to consider these arguments in deciding whether Care Net should get the loan.
Care Net’s attorneys hope the case will have a broader impact and will help lead to more religious groups being able to access government funding.
‘Learn to Earn’
Two years ago, Care Net requested financial assistance through the USDA’s Community Facilities Direct and Guaranteed Loans program, which makes and guarantees loans “to develop essential community facilities in rural areas and towns of up to 20,000 in population.” According to the USDA, “essential community facilities” include those that provide “health care, public safety, and public services.”
Two main issues led the USDA’s Rural Development department to deny the request.
One factor was that Care Net — which, as an affiliate of the national Care Net organization, must certify that its primary mission “is to share the truth and love of Jesus Christ in conjunction with a ministry to those facing pregnancy related issues” — intended to host Bible study and other religious classes in the facility that was to be purchased with the USDA loan.
A second, related issue was that Care Net’s “Learn to Earn” program appeared to be incentivizing religion by requiring that expecting parents take both Bible study classes and parenting classes in order to earn material rewards like baby clothes and furniture.
The USDA’s regulations prohibit its funding from being used for “inherently religious activities, such as worship, religious instruction, or proselytization,” as well for activities where religious participation is not voluntary.
Organizations seeking to participate in the Community Facilities program must first go through a pre-application process so the USDA can determine applicants’ eligibility before they make substantial investments on the project.
In her December 2010 pre-application letter to the USDA, Care Net Executive Director Liz Chechile explained that after 25 years of renting in Brattleboro, her center wanted to purchase a local church’s parsonage but needed a loan of about $100,000 to help pay for renovations to bring the building up to code. According to court filings, Chechile had discussed with a USDA program specialist the possibility of her center having an emergency homeless shelter for pregnant women and new mothers if Care Net were able to acquire and renovate the building.
Chechile sent the USDA several documents about Learn to Earn, which she at one point described as “by far” Care Net’s most popular program. The material explained that if expecting parents attended 12 parenting classes and 12 Bible study classes in a 15-week period, they could earn “baby and mommy care necessities” — like baby clothes and baby furniture. If clients completed the required number of classes in the required time frame, they could choose one “large item” from a list. Clients could also choose a “medium item” if their partners attended all of the classes and a “small item” if they and their partners complete all of the homework. In one letter to the USDA, Chechile said that Care Net “sometimes” makes “slight adjustments” to the Learn to Earn requirements — for example, substituting “some extra Parenting Classes in for some of the Bible Study Classes.”
In a subsequent email to the USDA, Chechile said the Bible classes, on average, make up only about 10 percent of Care Net’s services.
The list of Care Net’s Learn to Earn course names are nearly identical to those offered by Earn While You Learn, a video-based parenting-education program offered at similar anti-abortion crisis pregnancy centers across the country. The curriculum was developed by Dinah Monahan, a founder and director of a center in Arizona, and is distributed exclusively by the Christian Heritage House.
In promoting the program, the Earn While You Learn website says, “Giving things away free only enables our clients and fosters the entitlement mentality.” Instead, Earn While You Learn helps “break cycles of poor parenting, neglect and abuse” by teaching participants “how to be good parents” in exchange for “much needed items for their babies.” The website also explains how this program reaches “abortion vulnerable” clients:
While many tactics rely on cold-contacts (billboards, phone book, etc), EWYL creates an environment where your services are promoted between friends. The young women in your EWYL classes have circles of friends that include those who are the most abortion vulnerable. When an unplanned pregnancy occurs, many times it is to the friends that women first go – and those friends can tell them about your center. Most centers using EWYL don’t just see a dramatic increase in visits for instruction — they also see a significant increase in abortion minded appointments.
According to Judge Reggie Walton’s October opinion, after the loan request was denied, a USDA representative asked Chechile if Care Net could offer the Bible-centered courses in a separate, non-federally funded facility, but Chechile said that would not be possible.
In June 2011, a month after being told that Care Net was found ineligible to participate in the Community Facility Loan Program, Chechile told the USDA “that Care Net changed the rules for the Learn to Earn program by not requiring Bible study classes, and by eliminating the rewards given to individuals who participated in such classes,” according to Walton’s opinion.
At an appeals hearing held a month later in Montpelier, USDA National Appeals Division hearing officer Bradley Blackburn repeatedly asked Care Net’s side — represented by two attorneys and two board members — if Learn to Earn participants have to attend Bible study if they want baby supplies.
Care Net board member Suzanne King said during that hearing that Care Net no longer requires Bible Study, but that they used to as “sort of an experiment.”
“For a period of time, probably a year … you had a choice of the regular classes and the Bible classes, and it was included to do the Bible classes to earn like a crib, something of that nature. You needed to take Bible classes,” King said. “That is something that is actually being reassessed, not because of this, but just because of wanting to make our services readily available to everybody.”
At one point, after Blackburn asked if Bible classes were in some way “required,” King responded:
Not really. I mean, that’s something that we’re actively — the last time I talked with [Chechile], we have talked about doing it both ways. They are available, but I don’t believe they are going to be required. There was a time that the Learn to Earn program, because we are donation based, we had so many people coming our doors that — I mean, we provided maternity clothes, we provided diapers, baby clothes, as well as cribs, strollers. The women could pick out what they wanted, basically speaking — that it became overwhelming, and we financially could not continue to support that program to the extent that we had it. We are certainly hoping, once we have our own building, once we’re better established, that’s something that may be able to grow again.
Care Net attorney Michael Tierney told The American Independent in a phone conversation that that aspect of the Learn to Earn Bible study requirement was a misunderstanding and that Care Net has since “adopted an official policy to make sure there wasn’t any confusion about that.”
“Care Net of Windham County in Brattleboro does not give out baby items as rewards based on, you know, one’s participation in Bible study classes or parenting classes,” he said. “The baby items are given out to women who need them, who have babies who can use them.”
TAI asked Chechile about the current status of the program, but she chose not to answer any questions for this article, because, she said, the situation with the USDA has not yet been resolved.
Among those Care Net has served through Learn to Earn include parents in trouble with the law. Tierney told TAI that when parents in rural southeastern Vermont are involved in “abuse and neglect proceedings,” the state court sometimes gives parents the option to take parenting classes at Care Net. He said there are not many other parenting-class providers in this part of the state.
‘Excessive government entanglement with religion’
On the advice of its legal department, the USDA concluded that were the agency to engage in a long-term borrower-lender relationship with Care Net, there was a potential for “excessive government entanglement with religion,” which the Supreme Court has decided is a violation of the First Amendment’s establishment clause.
In a May 2011 memo, USDA Office of the General Counsel attorney adviser Virginia Henning wrote that though Care Net’s non-religious activities were eligible for financial assistance under the federal agency’s program rules, it would be difficult for the USDA to “accurately prorate the amount of time and space used in this facility for religious education” and would thus require “extensive monitoring” from the USDA to make sure the center was not engaging in too much religious activity.
Now, thanks to last month’s court order, the USDA Appeals Division must consider Care Net’s claim that the loan denial on the basis of the group’s religious activities violated Care Net’s constitutional rights to free speech and equal protection. In addition, the hearing officer will consider Care Net’s claim that the USDA violated the Fair Housing Act (this has to do with Care Net’s proposal to host an emergency shelter in the building it wants to acquire).
In a recent phone interview, Care Net attorney Michael Tierney told TAI that the USDA’s decision to deny Care Net the loan was “blatant religious discrimination.” He argued that the Supreme Court has determined on different occasions that people can engage in religious speech in publicly funded places, such as public schools and libraries, without violating the Constitution.
“It’s quite surprising that USDA would say, ‘No, this is a USDA-partially-financed building with a government-backed loan; therefore, you can’t have discussion of anything religious,” Tierney said. “If you could do it in the elementary school and the high school and the college, the fact that USDA is offering a loan to Care Net doesn’t mean that Care Net loses its rights to engage in religious speech.”
Howard Friedman, a professor of law emeritus at the University of Toledo, who writes the church/state-issues blog Religion Clause, told TAI in an interview that Care Net’s case with the USDA is part of an ongoing question of how much religious activity can exist in government-funded buildings, a question that he said dates back to the dawn of President George W. Bush’s federally funded “faith-based initiatives.”
Though the general rule is that government money can’t be used to promote religion, Friedman said, the lack of clear guidelines is what often leads religious entities and government agencies to battle this out in court.
“I think this is one of those areas where you almost have to have some judgment about are they really using the money to promote religion or not, because it’s one of those places where once you draw a line, people will look really hard for ways to evade, to comply technically but evade the spirit of the rule,” Friedman said.
“Here you did have the Department of Agriculture trying to draw a clear rule,” he continued. “They were trying to make it more like the tax code so that the people administrating the program would know how to administer it. And the court said, ‘Yeah, that’s fine, and the department follows that rule, but then the question is, did that rule go too far and amount to discrimination against a religious group?”
Tierney said he hopes the case will help pave the way for more religious organizations to receive government funding.
“I think there needs to be an increased awareness of the fact that the establishment clause isn’t about denying people of faith the opportunity to participate in government programs on the same basis as areligious people,” he said. “And we sees this happen in all sorts of programs across the country, and many times small religious organizations don’t have the resources or the ability to fight the long legal fight; they just give up and realize that they are on an unequal footing. And hopefully our winning this case will cause other religious organizations throughout the country not to be discriminated against on the basis of religious speech. That’s what our goal here is.”
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