Week Five Electronic Reserve Readings

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 1 11-MAR-14 16:56

A New Form of “Ideological Capture”: Abortion Politics and the Trafficking Victims

Protection Act

Elizabeth Bewley*

I. INTRODUCTION

In late 2011, advocates watched, bewildered, as the nation’s anti-traf- ficking law—a measure with near-universal support in Congress—expired in the midst of partisan controversy.1 Many wondered how the Trafficking Victims Protection Act (TVPA),2 a law that had sailed to reauthorization three times since its initial passage in 2000,3 had become so contentious.

The answer was that abortion politics had entered the realm of the TVPA. In October 2011, the Department of Health and Human Services (HHS) refused to renew funding to the U.S. Conference of Catholic Bishops (USCCB)—which had overseen social services for trafficking victims na- tionwide for more than five years—because USCCB would not provide abortion and contraceptive services to trafficking victims.4 This prompted a firestorm of criticism from faith-based organizations and conservative lawmakers,5 who called the move “pro-abortion favoritism” and assailed the Obama Administration for waging a war against Catholics and religious freedom.6 Some conservative lawmakers sought to add a “conscience

* J.D. Candidate 2015, Harvard Law School. I wish to thank Professor Janet Halley for her guidance and support. Thanks also to Professor Halley’s Spring 2013 Trafficking and Labor Migration class for thought-provoking discussions, and to the staff of the Harvard Law and Policy Review for its dedication and hard work.

1 See Elizabeth Bewley, Abortion Issue Slows Action on Trafficking Bill, GANNETT NEWS SERV. (Apr. 9, 2012), http://www.wbir.com/news/article/215403/2/Abortion-issue-slows-ac- tion-on-trafficking-bill.

2 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 [hereinafter TVPA] (codified as amended at 22 U.S.C. § 7101–7113 and scattered sections of the U.S. Code).

3 See Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 [hereinafter TVPRA 2003] (codified as amended at 22 U.S.C. § 7101–7113 and scattered sections of the U.S. Code); Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2006) [hereinafter TVPRA 2005] (codified as amended at 22 U.S.C. § 7101–7113 and scattered sections of the U.S. Code); William Wilber- force Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 [hereinafter TVPRA 2008] (codified as amended at 22 U.S.C. § 7101–7113 and scattered sections of the U.S. Code).

4 See Jerry Markon, Catholic Group Unfairly Denied Grant, GOP Says, WASH. POST, Nov. 12, 2011, at A4.

5 Id. 6 HHS and the Catholic Church: Examining the Politicization of Grants: Hearing Before

the H. Comm. on Oversight and Gov’t Reform, 112th Cong. 58 (2011), available at http:// www.gpo.gov/fdsys/pkg/CHRG-112hhrg73939/pdf/CHRG-112hhrg73939.pdf (statement of Hon. Christopher H. Smith, Rep. of New Jersey).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 2 11-MAR-14 16:56

230 Harvard Law & Policy Review [Vol. 8

clause” to the newest TVPA reauthorization bill (TVPRA) to prevent the Administration from denying funds to any organization based on its moral or religious beliefs.7 Democratic legislators rejected this idea, arguing that vic- tims of trafficking—many of whom were forced into sex work—desperately needed access to abortion and contraception.8

The reauthorization that finally passed in February 2013, after more than a year of negotiation, did not include a conscience clause.9 But the debate signaled that, to borrow a phrase from Professor Janie Chuang, the anti-trafficking movement is at risk of “ideological capture”10 by the anti- abortion movement. Just as powerful anti-prostitution advocates have con- flated the anti-trafficking movement in the United States with a campaign against prostitution,11 abortion opponents may continue their attempt—seen in the recent reauthorization debate—to reorient the anti-trafficking move- ment to align with anti-abortion ideology. To ease the reauthorization pro- cess when the current version of the law expires in 2017, anti-trafficking advocates on both sides of the aisle should guard against future insertion of abortion politics into the legislative debate.

Part II of this article examines the problem of human trafficking and the major international and domestic efforts aimed at combating it. Part III then describes the influence of socially conservative interest groups and lawmakers, motivated in large part by evangelical and Catholic religious be- liefs, in putting trafficking on the domestic agenda, moving the TVPA through Congress in 2000, and implementing it over the following decade. This Part argues that, for two reasons, the involvement of these social con- servatives set the TVPA on course to eventually collide with the anti-abor- tion movement. First, such involvement turned trafficking into a “woman’s issue” that focused on sex and morality. Second, it created a regime in which many of the anti-trafficking movement’s biggest advocates also vehe- mently opposed abortion rights.

Part IV explores two high-profile intersections between abortion polit- ics and anti-trafficking advocacy. Part IV.A examines a series of “stings” on Planned Parenthood clinics by an anti-abortion group, in which clinic employees were filmed purportedly advising sex traffickers on how to obtain medical care for trafficked girls without attracting the attention of law en- forcement. It argues that this incident alerted lawmakers to potential links between sex trafficking and abortion and convinced some abortion oppo-

7 See H.R. 3589, 112th Cong. § 303 (1st Sess. 2011). 8 See Huma Khan, Abortion Issue in Catholic Bishops Sex Trafficking Victim Funding,

ABC NEWS (Dec. 1, 2011, 2:23 PM), http://abcnews.go.com/blogs/politics/2011/12/abortion- issue-in-catholic-bishops-sex-trafficking-victim-funding.

9 See Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. XII, 127 Stat. 54.

10 Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. PA. L. REV. 1655 (2010).

11 See id. at 1699–1701.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 3 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 231

nents that abortion providers “aid and abet” sex traffickers. Part IV.B de- scribes the ways in which these anxieties and others played out in the 2011–2013 TVPA reauthorization debate. It explores conservative efforts to frame a critique in terms of religious freedom and the importance of victim consent, rather than in terms of immorality.

Finally, Part V makes recommendations to help advocates ensure that controversy over abortion does not endanger future TVPA reauthorizations. It encourages anti-trafficking advocates to time the next TVPA reauthoriza- tion wisely and to facilitate compromise between HHS and faith-based groups. This article concludes by suggesting that shifting the focus of anti- trafficking policy toward the human rights of male and female victims—of labor and sex trafficking—would reduce lawmakers’ and advocates’ tunnel vision on women and sexual morality, thereby lessening the power of the anti-abortion movement in the anti-trafficking field. A broader focus on the human rights of forced laborers of all stripes—including, but not limited to, sex workers—would also refocus some attention on migrant laborers, do- mestic workers, and other victims whose plights are underappreciated in the current regime.

II. ADDRESSING THE PROBLEM OF HUMAN TRAFFICKING

While it is difficult, if not impossible, to determine how many victims exist, trafficking is believed to be a widespread problem.12 The International Labour Organization estimates that nearly twenty-one million people world- wide are in forced labor or forced sexual exploitation.13 Between 14,500 and 17,500 people are trafficked into the United States each year, according to the U.S. State Department.14 Globally, fifty-five to sixty percent of all traf- ficking victims are women, and almost all sex trafficking victims are women.15

Trafficking attracted international attention in the mid-1990s due to the convergence of several factors: the growth of the women’s human rights movement, the growing recognition of the importance of organized crime in migration, and an overall rise in international labor migration due to global- ization.16 Specifically, increased migration in Eastern Europe after the col-

12 Estimating the scope of the trafficking problem is challenging, both because trafficking victims are often hidden and unlikely to identify themselves to researchers, and because re- searchers themselves have published widely varying, unverifiable estimates.

13 21 Million People Are Now Victims of Forced Labour, ILO Says, INT’L LABOUR ORG. (June 1, 2012), http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_181961/lang —en/index.htm.

14 HEATHER J. CLAWSON ET AL., U.S. DEP’T OF HEALTH & HUMAN SERVS., HUMAN TRAF- FICKING INTO AND WITHIN THE UNITED STATES: A REVIEW OF THE LITERATURE, 4 (2009), available at http://aspe.hhs.gov/hsp/07/humantrafficking/litrev/index.pdf

15 UNITED NATIONS OFFICE ON DRUGS & CRIME, GLOBAL REPORT ON TRAFFICKING IN PERSONS, 7 (2012), available at http://www.unodc.org/documents/data-and-analysis/glotip/ Trafficking_in_Persons_2012_web.pdf.

16 Chuang, supra note 10, at 1660.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 4 11-MAR-14 16:56

232 Harvard Law & Policy Review [Vol. 8

lapse of the Soviet Union turned attention to trafficking.17 Furthermore, the rapid spread of HIV/AIDS during this period amplified concerns about the health effects of sex trafficking.18 A coalition spanning the political spec- trum developed in the mid-1990s to tackle the growing scourge of so-called “modern-day slavery”; its members included feminists, human rights orga- nizations, government agencies, and religious groups, including evangelical, Catholic and Jewish activists.19

The heightened visibility of trafficking came to a head in 2000 with the adoption of international and U.S. anti-trafficking laws: the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (U.N. Protocol),20 and the U.S. TVPA. The U.N. Pro- tocol requires participating nations to criminalize trafficking and encourages, but does not require, states to protect and support victims.21 It defines human trafficking as:

[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.22

The protocol defines exploitation as including “the exploitation of the prosti- tution of others or other forms of sexual exploitation,” forced labor, slavery, servitude, or the removal of organs.23

This definition was the result of months of debate among interest groups. In particular, fault lines emerged between so-called “abolition- ists”—an unlikely pairing of social conservatives, feminists, religious groups, and others who considered all prostitution coercive and therefore a form of trafficking24—and those who believed non-coerced sex work is pos-

17 Barbara Stolz, Educating Policymakers and Setting the Criminal Justice Policymaking Agenda: Interest Groups and the ‘Victims of Trafficking and Violence Act of 2000’, 5 CRIM. JUST. 407, 408 (2005).

18 Id. 19 Elizabeth Bernstein, The Sexual Politics of the “New Abolitionism,” 18 DIFFERENCES: J.

FEMINIST CULTURAL STUDS. 128, 129 (2007); Elisabeth Bumiller, Evangelicals Sway White House On Human Rights Issues Abroad, N.Y. TIMES, Oct. 26, 2003, at A1.

20 United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Espe- cially Women and Children, Dec. 12, 2000, 2237 U.N.T.S. 319. This Protocol is a supplement to the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209.

21 Id. Arts. 5–6. 22 Id. Art. 3(a). 23 Id. 24 Although the groups comprising the abolitionist coalition held dramatically divergent

views on many topics, they shared a desire to eliminate prostitution around the world. See Chuang, supra note 10, at 1658 (defining “neo-abolitionists”). In this article, the term “aboli- tionist” will most often be used to refer to conservative Christian abolitionists, who played a key role in establishing the dominance of the abolitionist perspective in U.S. anti-trafficking policy, see infra Part III.B–III.D.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 5 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 233

sible. While neither side won a clear victory in the U.N. definition, its ex- pansive definition of trafficking—which includes such factors as “the abuse of power or of a position of vulnerability”—reflects, at least in part, aboli- tionists’ power.25

Abolitionists also exerted influence over the trafficking definition in the TVPA, signed into law two months before the U.N. Protocol, in October 2000.26 Unlike the U.N. Protocol, the TVPA defines “sex trafficking” to encompass even non-coerced commercial sex.27 The TVPA penalizes only “severe forms of trafficking,” however, which it defines as:

(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to per- form such an act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or ob- taining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary ser- vitude, peonage, debt bondage, or slavery.28

This definition is narrower than the U.N. Protocol’s definition of trafficking, as it does not criminalize such factors as the abuse of power or the removal of organs.29

While the TVPA’s distinction between sex trafficking—which includes, but does not penalize, non-coerced commercial sex—and “severe forms” of sex trafficking has had little if any practical impact, it represented a sym- bolic victory for the religious and feminist abolitionists who had pushed for legislation that treated all prostitution as trafficking. As one journalist wrote, the separate definition of sex trafficking “pleased conservative femi- nists but more significantly enabled the broader social agenda of the Chris- tian right. If trafficking is prostitution per se, then evangelicals can fight all prostitution, throughout the world, in the name of trafficking.”30 Further- more, the TVPA does not require movement across an international border, meaning that in the United States, anyone who forces someone into prostitu- tion can be prosecuted as a sex trafficker.31

25 Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J.L. & GENDER 335, 359 (2006).

26 See Chuang, supra note 10, at 1677–80. 27 TVPA § 103(9) (defining “sex trafficking” as “the recruitment, harboring, transporta-

tion, provision, or obtaining of a person for the purpose of a commercial sex act”). 28 Id. § 103(8). 29 Halley et. al, supra note 25, at 359. 30 Jennifer Block, Sex Trafficking: Why the Faith Trade Is Interested in the Sex Trade,

CONSCIENCE (2004), http://www.catholicsforchoice.org/conscience/archives/c2004sum_sex- trafficking.asp.

31 See Stephanie M. Berger, No End in Sight: Why the End Demand Movement Is the Wrong Focus for Efforts to Eliminate Human Trafficking, 35 HARV. J.L. & GENDER 523, 536 (2012).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 6 11-MAR-14 16:56

234 Harvard Law & Policy Review [Vol. 8

The TVPA aimed at “three P’s”: prosecution of traffickers, prevention of trafficking, and protection of victims.32 As for prosecution, the act cre- ated new crimes—for example, trafficking in children33 and forced labor34— and increased penalties for existing trafficking crimes.35 The law’s preven- tion provisions created a Trafficking in Persons (TIP) Office within the U.S. State Department, requiring it to produce annual reports on countries’ efforts to reduce trafficking.36 Countries that do not meet the TVPA’s anti-traffick- ing standards and do not take “significant” strides to improve can be cut off from U.S. non-humanitarian, non-trade-related aid.37

Victim protection in the TVPA centers on immigration measures and social services. Trafficking victims can receive temporary “T” visas, which provide a pathway to permanent legal status.38 HHS administers social ser- vices by awarding grants to organizations providing counseling, housing, medical care, and other aid.39 From 2006–2011, HHS contracted with USCCB to oversee the provision of victim services nationwide.40 These vic- tim-services funds would become the most controversial part of anti-traffick- ing policy when lawmakers tried to reauthorize the bill in 2011.

III. “I DEOLOGICAL CAPTURE”: THE ROLE OF ABOLITIONISTS IN PASSING AND IMPLEMENTING THE TVPA

A. A New Form of “Ideological Capture”

While much of the movement to end the injustices faced by sex work- ers in the early and mid-1990s focused on sex workers’ rights, these efforts were soon overshadowed by the work of abolitionists: an unusual coalition of feminists, NGOs, state agencies, evangelical Christians, and other relig- ious groups lobbying for the abolition of prostitution worldwide.41

The alliance between feminist and conservative interest groups in pass- ing the TVPA was surprising, not least because these groups tend to disagree on reproductive rights, including support for access to abortion, and, in some cases, contraception.42 Although the TVPA defines trafficking to include a wide variety of offenses—including forced labor—this powerful abolitionist

32 OFFICE TO MONITOR AND COMBAT TRAFFICKING IN PERSONS, U.S. DEP’T OF STATE, THE 3 PS: PREVENTION, PROTECTION, PROSECUTION (2011), available at http://www.state.gov/docu- ments/organization/167334.pdf.

33 TVPA § 1591. 34 Id. § 1590. 35 Id. § 112. 36 Id. §§ 104–105. 37 Id. § 110. 38 Id. § 1513. 39 Id. § 107. 40 See ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 50 (1st Cir.

2013) (describing the history of HHS’ victim-services contracts with USCCB). 41 Bernstein, supra note 19, at 129. 42 See Jacqueline Berman, The Left, the Right, and the Prostitute: The Making of U.S.

Antitrafficking in Persons Policy, 14 TUL. J. COMP. & INT’L L. 269, 271–72 (2006).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 7 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 235

coalition has influenced U.S. enforcement priorities so strongly that much of the anti-trafficking movement has morphed into an anti-prostitution cam- paign.43 Abolitionists believe that prostitution is inherently coercive, and that all prostitutes are therefore trafficked. According to this perspective, no one freely consents to sex work; if a sex worker believes she has consented, it is because she has convinced herself as a survival mechanism that she is acting voluntarily.44

Chuang contends that abolitionists’ ascendance in the anti-trafficking movement amounts to “ideological capture”: abolitionists have promoted “criminal justice responses that target prostitution and leave unquestioned the exploitative labor practices and migrant abuse that characterize the ma- jority of trafficking cases.”45 Chuang argues that abolitionists have em- braced a “crusader impulse,” using law-and-order approaches to “rescue” women in brothels and, in doing so, invoking stereotypes of “naı̈ve Third World women.”46 As is the case with most “moral crusades,” Chuang writes, abolitionists have avoided critically evaluating the effectiveness of their approach.47 This focus on ideology over evidence in the use of anti- prostitution criminal sanctions hurts trafficking victims, according to Chuang, because it fails to address the underlying causes of trafficking: gen- der, race, and class discrimination; inadequate migration avenues; and socio- economic inequality that increases vulnerability to exploitation.48

Abolitionists’ initial framing of the debate has placed the anti-traffick- ing movement at risk for a second “ideological capture”—this time, by anti- abortion activists. The role of abolitionists turned the anti-trafficking field into a fertile ground for anti-abortion activism in two ways. First, abolition- ists transformed trafficking into an issue that centered on women, sexuality, and sexual morality, rather than on coercive labor affecting both sexes; sexu- alizing the debate in this way enabled abortion politics to more easily enter the dialogue, since abortion is inextricably tied to female sexuality. Second, the influence of abolitionists placed conservative evangelicals and Catholics at the anti-trafficking movement’s helm—in Congress, in the Bush Adminis- tration, and in many advocacy organizations. Because these conservatives tended to oppose abortion rights, their close involvement in the anti-traffick- ing movement increased the likelihood that abortion politics would eventu- ally enter the anti-trafficking realm.

43 Bernstein, supra note 19, at 130; Chuang, supra note 10, at 1658. 44 See, e.g., Melissa Farley, “Bad for the Body, Bad for the Heart”: Prostitution Harms

Women Even if Legalized or Decriminalized, 10 VIOLENCE AGAINST WOMEN 1087, 1106–09 (2004) (arguing that women who appear to consent to sex work have dissociated identities, which allow them to suppress their emotions in order to survive).

45 Chuang, supra note 10, at 1659. 46 Id. at 1659, 1715. 47 Id. at 1721. 48 Id. at 1727–28.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 8 11-MAR-14 16:56

236 Harvard Law & Policy Review [Vol. 8

While abolitionist feminist interest groups played a key role in the pas- sage and implementation of the TVPA, conservative Christian abolitionists49 arguably played a greater role in the expansion of the abolitionist agenda in the anti-trafficking regime.50 Likewise, because of their firm opposition to abortion, conservative Christian lawmakers and interest groups were largely behind the delay in the most recent reauthorization of the TVPA.51 Thus, to understand the forces that put the anti-trafficking field at risk for capture by anti-abortion advocates, it is first necessary to explore the central role of the religious right in passing and implementing the TVPA.

B. Pre-Passage: Building Conservative and Evangelical Advocacy

Nicholas Kristof coined the term “new internationalism” to describe the brand of global humanitarian activism practiced by the Christian right in the 1990s and 2000s.52 While in the 1980s, conservative Christians focused on divisive domestic issues such as abortion, by the late 1990s they had shifted their focus toward international social justice issues that would allow them to build consensus with the left and secular activists.53 As Rev. Rich- ard Cizik of the National Association of Evangelicals said in 2003: “Evangelicals today are more interested in making a difference than in mak- ing a statement. . . . We made a lot of statements in the 1980’s and got zip.”54

This “leftward sweep”55 of the Christian right culminated first in the passage of the International Religious Freedom Act of 1998, which estab- lished freedom from religious persecution as a central objective of U.S. for- eign policy.56 Michael Horowitz of the Hudson Institute, a conservative think tank, pulled together a coalition of evangelical groups to lobby for the passage of the International Religious Freedom Act.57 The Act set up a dedi- cated office in the U.S. State Department tasked with evaluating religious freedom around the world and allowed for economic sanctions to be levied

49 Some scholars and journalists have referred to “evangelical Christians” as the primary religious group driving anti-trafficking policy. See id. at 1658. However, this overlooks the strong influence of Catholic interest groups and lawmakers. Thus, this article will use the term “conservative Christian” when referring to the politically and socially conservative evangeli- cal and Catholic interests active in the anti-trafficking movement.

50 See Berman, supra note 42, at 270, 272; Block, supra note 30; Bumiller, supra note 19, at A1.

51 Many conservative activists have contended that HHS (and not abortion opponents) initially inserted abortion politics into the anti-trafficking agenda when it declined to renew USCCB’s grant. Regardless of who kicked off the controversy, however, anti-abortion lawmakers—who tended also to be evangelical or Catholic—were primarily responsible for delaying action on the reauthorization bill in 2011–2013. See infra IV.B.

52 Nicholas D. Kristof, When the Right is Right, N.Y. TIMES, Dec. 22, 2004, at A31. 53 Bumiller, supra note 19, at A6. 54 Id. 55 Bernstein, supra note 19, at 144. 56 Block, supra note 30. 57 Id.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 9 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 237

against countries deemed guilty of severe violations of religious freedom.58 The State Department’s Trafficking in Persons (TIP) Office and annual TIP reports created by the TVPA a few years later would mirror this structure. Critics of the International Religious Freedom Act said it merely created an office for evangelicals in the State Department and made cash available to faith-based groups, giving them a platform from which to launch their next international initiative.59

That next initiative was human trafficking.60 By 1998, President Bill Clinton had signed a directive tasking the President’s Interagency Council on Women (PICW) with coordinating U.S. domestic and foreign policy to re- duce trafficking in women and children.61 The Clinton Administration’s per- spective “conceptualized prostitution and trafficking as distinct” and “envisioned the possibility of noncoerced prostitution.”62 In negotiations over the U.N. Protocol, the Administration sought to exclude voluntary pros- titution from the definition of sex trafficking.

This approach did not sit well with conservative Christian interest groups, which wanted all prostitution to be considered trafficking. Notable evangelical and conservative leaders—including Richard Land of the South- ern Baptist Convention, Bill Bright of Campus Crusade for Christ, Kay Cole James of the Heritage Foundation, and Diane Knippers of the Institute on Religion and Democracy (a Christian alliance promoting democracy abroad)—wrote a letter expressing concern about the Administration’s stance on prostitution.63 Chuck Colson, founder of the evangelical Prison Fellowship and a former Nixon aide,64 and Bill Bennett, a conservative Cath- olic and Education Secretary under George H.W. Bush,65 said the Adminis- tration’s position would “lend legitimacy to prostitution” and “contradict common sense and decency.”66 Though these interest groups did not win over the Clinton Administration, they found a more receptive audience when they turned to Congress to lobby for a domestic anti-trafficking bill.

58 Religious Freedom, U.S. DEP’T OF STATE, http://www.state.gov/j/drl/irf (last visited Nov. 24, 2013).

59 Block, supra note 30. 60 Id. 61 Government Action Plans, HUMANTRAFFICKING.ORG, http://www.humantrafficking.org/

action_plans/15 (last visited Nov. 24, 2013). 62 Halley et al., supra note 25, at 356. 63 Stolz, supra note 17, at 418; Tony Carnes, Washington: “Odd Couple” Politics:

Evangelicals, Feminists Make Common Cause Against Sex Trafficking, CHRISTIANITY TODAY (Mar. 6, 2000), http://www.christianitytoday.com/ct/2000/march6/14.24.html.

64 Michael Dobbs, Charles Colson, Nixon’s “Dirty Tricks” Man, Dies at 80, WASH. POST (Apr. 21, 2012), http://www.washingtonpost.com/politics/whitehouse/chuck-colson-nixons- dirty-tricks-man-dies-at-80/2012/04/21/gIQAaoOHYT_story.html.

65 Joshua Green, The Bookie of Virtue, WASH. MONTHLY (June 2003), http://www.wash- ingtonmonthly.com/features/2003/0306.green.html.

66 William J. Bennett & Charles Colson, The Clintons Shrug at Sex Trafficking, WALL ST. J., Jan. 10, 2000, at A26.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 10 11-MAR-14 16:56

238 Harvard Law & Policy Review [Vol. 8

C. Passage: Conservative Christian Backers of the TVPA in Congress

Among the strongest backers of anti-trafficking legislation in Congress were conservative Christian lawmakers. Like the interest groups that helped guide their policy decisions, these legislators focused primarily on sex traf- ficking, not labor trafficking, and supported a definition of trafficking that would include all commercial sex work.

Rep. Chris Smith (R-NJ), the lead sponsor of the House version of the TVPA, and Sen. Sam Brownback (R-KS), who co-sponsored the Senate ver- sion with Sen. Paul Wellstone (D-MN), approached anti-trafficking work from a faith-based perspective. (Both Smith and Brownback are devout Catholics.) Smith called trafficking a “sinister trade” that violates “the God-given dignity and integrity of each individual,”67 while Brownback said he was motivated to tackle trafficking and other international human-rights violations because they were “the things that the Lord would want done.”68 Smith and Brownback were among Congress’ most socially conservative members—both strongly opposed abortion rights, for example—but were also known for their work on international human rights issues.69 One jour- nalist called Brownback a “bleeding heart right winger,” citing his work on trafficking, malaria, and immigration reform.70 When he began considering anti-trafficking legislation, Brownback sought out the coalition of religious and human rights groups that had worked together to pass the International Religious Freedom Act of 1998.71

Thus, Smith and Brownback were perfect partners for faith-based groups, whose representatives met with lawmakers to discuss legislation.72 Among the groups that advised legislators and testified at congressional hearings were the Family Research Council, the National Association of Evangelicals, International Justice Mission, and the Southern Baptist Con- vention.73 Leaders such as Horowitz, Colson, and Bennett also provided in- put.74 As Professor Jayashri Srikantiah wrote, the legislative record “reflected the abolitionist/conservative perspective, centering on the female ‘innocent victims’ of sex trafficking whose participation was ‘involuntary’

67 Tony Carnes, Alliance Targets Sex Trafficking, CHRISTIANITY TODAY (Aug. 9, 1999), http://www.christianitytoday.com/ct/1999/august9/9t918a.html.

68 Kristof, supra note 52. 69 See, e.g., Joelle Farrell, Rep. Chris Smith Tries to Keep the Pressure on for Chinese

Activist, PHILA. INQUIRER, May 15, 2012, at A1 (characterizing Smith as a “staunch opponent of abortion” and a “champion for human rights”); Adam C. Smith, Sam Brownback Seeks Winning Niche as Bleeding-Heart Right Winger, TAMPA BAY TIMES, Feb. 25, 2007, at 1P (describing Brownback as “a hero to antiabortion activists” who also has a “compassionate conservative agenda”).

70 Smith, supra note 69. 71 Stolz, supra note 17, at 415–16. 72 Id. 73 Id. 74 Id.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 11 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 239

and who would ‘face retribution or other serious harm upon return.’ ” 75 Brownback, for example, shared on the Senate floor his impressions of a trip to Nepal:

There were young girls, 16, 17, 18 years of age, most of whom had been tricked out of their villages in Nepal and promised a job at a carpet factory or a job as a housekeeper. . . . Once taking the job and moving out of their villages and away from their families they were forced into a brothel. They were locked in a room, beaten, starved, and submitted to the sex trade, at times being subjected to as many as 30 clients a night. . . . Once they were freed and got back to Nepal, most of these girls returned only to die. Two-thirds of them come back with such things as AIDS or tuberculosis. They are coming back to die.76

The legislative history described how law enforcement ultimately rescued some of the victims,77 suggesting lawmakers’ belief in the power of the crim- inal justice system to combat trafficking.

Consistent with “the perspectives of conservative and religious inter- ests,”78 Smith’s initial bill targeted sex trafficking of women and children and largely ignored labor trafficking. Pushed by Wellstone and Rep. Sam Gejdenson (D-CT), Smith and Brownback ultimately accepted a broader definition that encompassed sex trafficking and trafficking into other sec- tors,79 but they continued to describe the TVPA as aimed primarily at the trafficking of women into sex work.80 The broader definition did not deter Smith, Brownback, or other conservatives from championing the bill; Brownback, now governor of Kansas, even called the TVPA his greatest legislative achievement.81 The TVPA enjoyed near-universal support in Congress, passing the House 371–182 and the Senate 95–0.83

75 Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U. L. REV. 157, 170 (2007).

76 146 CONG. REC. 5084–01 (2000) (statement of Sen. Brownback). 77 Srikantiah, supra note 75, at 171. 78 Stolz, supra note 17, at 416. 79 The Comprehensive Antitrafficking in Persons Act of 1999, H.R. 3154, S. 1842, 106th

Cong. (1999). 80 See, e.g., 147 CONG. REC. 10924–01 (2001) (quoting Brownback as saying the focus of

the TVPA “was to get at the people who are trafficking, generally, young women and children for the purposes of prostitution”); House Passes $3 Billion Anti-Crime Bill Aimed at Protect- ing Women, ST. LOUIS POST-DISPATCH, Oct. 7, 2000, at 22 (quoting Smith as saying the TVPA “aims at those who “make money off the exploitation of women and children” (emphasis added)).

81 Smith, supra note 69. 82 See 146 CONG. REC. H9047–48 (daily ed. Oct. 6, 2000) (recording that the lone ‘no’

vote was cast by Republican Rep. Mark Sanford of South Carolina, a hard-line fiscal conservative).

83 See 146 CONG. REC. S10228 (daily ed. Oct. 11, 2000).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 12 11-MAR-14 16:56

240 Harvard Law & Policy Review [Vol. 8

D. Post-Passage: Expansion of the Evangelical Anti-Trafficking Agenda

While the TVPA’s broad definition of trafficking reflected the prefer- ences of many congressional Democrats and human rights groups, the TVPA’s implementation took on a decidedly abolitionist bent under the newly installed Bush Administration. Cognizant that white evangelicals ac- counted for at least forty percent of the votes Bush received in 2000,84 the Administration was influenced by the religious right to make sex trafficking a foreign-policy priority, and it spent millions on anti-trafficking initiatives that hewed closely to the abolitionist agenda.

At the urging of religious groups, Bush increased spending on the TVPA provisions that required the State Department to grade other countries’ efforts to reduce trafficking.85 The amount of money authorized to combat trafficking climbed from $31.8 million in 200186 to over $100 million in 2009,87 the last fiscal year that began while Bush was in office. Bush por- trayed sex trafficking as a key focus of U.S. foreign policy in an address to the United Nations General Assembly in 2003—a move that religious lead- ers such as Colson and Land encouraged. Aides said a focus on anti-traf- ficking, an issue palatable to voters of both parties, helped soften Bush’s controversial, war-driven foreign policy agenda.88

The influx of federal funding under Bush gave rise to new anti-traffick- ing nonprofits,89 and grants flowed to religious organizations such as USCCB, Catholic Charities, the YMCA, International Justice Mission, Con- cerned Women for America, and the Salvation Army.90 Such grants were made possible in part by Bush’s “Charitable Choice” initiative, which made it easier for religious groups to receive federal grants to provide social services.91

Not only was the influence of the religious right evident in who bene- fited from the Administration’s spending, but it also was apparent in the

84 Bumiller, supra note 19. 85 Halley et al., supra note 25, at 360. 86 S. REP. NO. 112-96, at 27 (2011). 87 See Emily Cadei, Culture Wars Claim Trafficking Law, CQ ROLL CALL (Apr. 28, 2012,

8:43 PM), http://public.cq.com/docs/weeklyreport/weeklyreport-000004072374.html (includ- ing chart that lists the federal budget for trafficking in 2009 at $103.5 million).

88 See Mike Allen, Bush Warns U.N. Assembly About Dangers of Trade in Sex Slaves, WASH. POST, Sept. 24, 2003, at A23; Bumiller, supra note 19.

89 Jerry Markon, Human Trafficking Evokes Outrage, Little Evidence, WASH. POST (Sept. 23, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/09/22/AR200709220 1401_5.html.

90 See USASPENDING.GOV, http://www.usaspending.gov (last visited Dec. 25, 2013) (pro- viding searchable database of federal grants).

91 See Ira Lupu, Hiring Law for Groups Following a Higher Law: Faith-Based Hiring and the Obama Administration, PEW RES. CENTER (Jan. 30, 2009), http://www.pewforum.org/ Church-State-Law/Hiring-Law-for-Groups-Following-a-Higher-Law-Faith-Based-Hiring-and- the-Obama-Administration.aspx (explaining evolution of charitable choice initiative). In par- ticular, in Mitchell v. Helms, 530 U.S. 793 (2000), the Supreme Court held that under the Establishment Clause, the federal government could fund religious groups directly as long as the funds would be used only for secular programs. Lupu, supra, at 25.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 13 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 241

strings attached to that spending. In 2002, Bush issued a directive prohibit- ing federal funds from going to foreign organizations that advocated legal- ized prostitution.92 Explaining the directive, the State Department called prostitution “inherently harmful and dehumanizing” and said it fueled human trafficking.93 A similar prohibition appeared in the 2003 reauthoriza- tion of the TVPA; grantees had to state in writing that they did not support or advocate the legalization of prostitution.94 Moreover, Bush’s appointee to head the TIP Office, former Republican Congressman John Miller, shared the view that all prostitution is a form of trafficking.95 Miller had close ties to the religious groups fighting trafficking: they lobbied the Bush Adminis- tration to tap Miller to replace the diplomat initially appointed to run the TIP Office,96 and Miller said the work of the religious groups on trafficking “keeps the whole government focused.”97

In sum, while a diverse range of interest groups made their mark on the text of the TVPA in the years leading up to its passage in 2000, the influence of the religious right arguably outstripped that of other interest groups in subsequent years. The ascendance of conservative Christians in the field sharpened the anti-trafficking movement’s focus on sex trafficking of wo- men and girls, instead of labor trafficking affecting both sexes, and ensured that many of the biggest players in the anti-trafficking movement staunchly opposed abortion. These two factors set the domestic anti-trafficking move- ment onto a collision course with anti-abortion advocates.

IV. THE ANTI-ABORTION AND ANTI-TRAFFICKING MOVEMENTS COLLIDE

At first blush, abortion and human trafficking seem unrelated. For this reason, many in the anti-trafficking field were surprised when abortion polit- ics stalled the latest reauthorization of the TVPA.98 But a deeper look at the issues reveals that anti-trafficking efforts necessarily touch on reproductive healthcare. Because victims are perceived to be women trafficked for sex, advocates on both sides of the abortion debate saw reproductive healthcare as a crucial need. However, they disagreed on whether that care should in- clude abortions (in cases of rape, incest, or life endangerment) and abortion referrals.99

92 The Link Between Prostitution and Sex Trafficking, U.S. DEP’T OF STATE, BUREAU OF PUB. AFFAIRS (Nov. 24, 2004).

93 Id. 94 TVPRA 2003 § 7. 95 Berman, supra note 42, at 274 (quoting Miller as arguing that “trafficking in women,

the sex pillar of slavery, cannot be viewed separately from prostitution”). 96 Ori Nir, U.S. Official Does ‘God’s Work’: Eradicating Slavery, FORWARD (May 7,

2004), http://forward.com/articles/5602/us-official-does-egodes-worke-eradicating-s/. 97 Bumiller, supra note 19. 98 Telephone interview with Jesse Eaves, Senior Policy Advisor, World Vision (Apr. 26,

2013) (notes on file with author). 99 Under the TVPA, certified trafficking victims are eligible for the same federally funded

services as refugees: contraception, and abortion in the cases of rape, incest, and life endanger-

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 14 11-MAR-14 16:56

242 Harvard Law & Policy Review [Vol. 8

Victims’ stories, recounted by anti-trafficking groups, law enforcement agencies, and lawmakers, emphasize the unplanned pregnancies, sexually transmitted diseases, and lack of access to healthcare that trafficking victims frequently experience. A police manual published by the U.S. Justice De- partment highlights the dire reproductive health needs of victims:

Trafficked women in the sex trade are so isolated from the commu- nity that their clients and handlers physically abuse them with im- punity, subjecting them to repeated rape and assault. They also deny them prenatal care or medical care in case of pregnancy, in- fections or injury, and force them to have abortions. Having no recourse, the women are forced to comply with client demands, the majority of whom, research has shown, refuse to use condoms. Thus, the spread of HIV and other sexually transmitted disease is more likely.100

Advocates of reproductive rights for trafficking victims have insisted that victims need access to abortion and contraception because participating in sex work—especially under coercive and violent conditions—puts them at risk of unintended pregnancies.101 Some anti-abortion activists, on the other hand, have claimed that abortion providers “aid and abet” traffickers.102 Ac- cording to this view, a trafficker can keep a pregnant victim in sex work by forcing her to have an abortion,103 whereas without an abortion, she might

ment. Brief for Appellee ACLU of Mass. at 10, ACLU of Mass. v. U.S. Conference of Catho- lic Bishops, 705 F.3d 44 (1st Cir. 2013) (No. 12-1466) [hereinafter ACLUM Brief].

100 GRAEME R. NEWMAN, U.S. DEP’T OF JUSTICE, OFFICE OF CMTY. ORIENTED POLICING SERVS., THE EXPLOITATION OF TRAFFICKED WOMEN 6 (2006), available at http://www.cops. usdoj.gov/Publications/e02061007.pdf.

101 See, e.g., ACLUM Brief, supra note 99, at 3, 6–7; Florrie Burke, Adjusting an Aid Program Is Not Anti-Catholic, WASH. POST, Nov. 18, 2011, at A20.

102 Kathleen Hennessey, GOP Targets Funding for Planned Parenthood, CHI. TRIB., Feb. 11, 2011, at 17 (quoting Live Action President Lila Rose). See also Wendy Wright, Abortion- ists: Human Traffickers’ Best Ally, TOWNHALL (Mar. 22, 2011), http://townhall.com/colum- nists/wendywright/2011/03/22/abortionists_human_traffickers%E2%80%99_best_ally/page/ full.

103 See, e.g., Wright, supra note 102. Indeed, reports suggest that forced abortions are a serious and all-too-common problem for trafficking victims. See, e.g., Maria Tavano, Traffick- ing in Persons: A Focus on Preventing Forced Labor, 32 WOMEN’S RTS. L. REP. 324, 350 (2011); NEWMAN, supra note 100, at 6. However, forced abortions can and should be distin- guished from abortions freely chosen by victims, which reports indicate do exist. In the con- text of HHS-funded health services, discerning whether a victim is freely choosing an abortion may be more straightforward than abortion opponents contend, as many victims receiving healthcare via programs designed for trafficking survivors are no longer under the control of a trafficker. See, e.g., Written Testimony from Susie Baldwin, MD, MPH, FACPM, for Hearing on ‘HHS And The Catholic Church: Examining the Politicization of Grants’ (Minority Day of Hearing) 7–8 (Dec. 14, 2011), available at http://paa2013.princeton.edu/papers/130765 (describing the story of a victim named Celia, who received a voluntary abortion through an NGO referral after law enforcement broke up the trafficking ring of which she had been a victim); HHS and the Catholic Church: Examining the Politicization of Grants (Minority Day of Hearing): Hearing Before the H. Comm. on Oversight and Gov’t Reform, 112th Cong. 10–11 (2011), available at http://oversight.house.gov/wp-content/uploads/2012/04/12-14-11- Full-Committee-Hearing-Transcript1.pdf (statement of Florrie Burke, Chair Emeritus of the Freedom Network) (“It is rare that traffickers will allow their victims to receive any health

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 15 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 243

have found some respite from exploitation; indeed, pregnancy might have prompted her to “seek rescue and a new life.”104 Anti-abortion advocates who share this view have two motivations to oppose a regime that allows victims access to abortion: first, they believe that abortion is morally wrong, and second, they believe that abortion facilitates trafficking and further strips victims of their agency. This perspective fueled a recent controversy involv- ing Planned Parenthood clinics.

A. “Aiding and Abetting” Traffickers: The Planned Parenthood “Sting”

Abortion politics collided with human trafficking in a highly visible way in January 2011, when people pretending to be sex traffickers visited at least twelve Planned Parenthood clinics across the nation as part of a “sting” by the anti-abortion group Live Action.105 These high-profile incidents alerted anti-abortion lawmakers and advocates to potential links between sex trafficking and abortion and publicized the notion that abortion worsens trafficking.

Live Action released a series of videos of the visits, which purport to show medical personnel giving advice to people appearing to traffic under- age girls into the sex industry.106 Planned Parenthood said most of the videos were doctored,107 but it fired a New Jersey clinic manager who was seen in a video advising an apparent sex trafficker on how to get medical exams for underage sex workers without attracting the attention of law en- forcement.108 When the man in the video asked if the girls, some as young as fourteen or fifteen, could get abortions, the clinic manager told him to visit another clinic where “protocols aren’t as strict as ours.”109

Live Action used the videos to fuel a campaign called “Expose Planned Parenthood,” which sought to eliminate the more than $75 million in federal family-planning funds that Planned Parenthood receives each year.110 Some conservative lawmakers wasted no time in acting. Rep. Mike Pence (R-IN) introduced legislation to cut funding to the organization soon after the video

care during the period of enslavement. . . . A more common occurrence is that after victims are rescued or escaped, they come into contact with service providers.”).

104 Steven Wagner, Kathleen Sebelius’ Gruesome Moral Calculus, NAT’L CATHOLIC REG. (Nov. 29, 2011), http://www.ncregister.com/daily-news/kathleen-sebelius-gruesome-moral- calculus#ixzz2Qx3wbMjc.

105 Erick Eckholm & Jennifer Medina, Anti-Abortion Groups Step Up Campaign Against Planned Parenthood, N.Y. TIMES (Feb. 2, 2011), http://www.nytimes.com/2011/02/03/us/ 03parenthood.html?_r=0.

106 Hennessey, supra note 102. 107 Planned Parenthood Informs Federal Authorities of Potential Sex Trafficking, PLANNED

PARENTHOOD (Jan. 24, 2011), http://www.plannedparenthood.org/about-us/newsroom/press-re- leases/planned-parenthood-informs-federal-authorities-potential-sex-trafficking-35888.htm.

108 Eckholm & Medina, supra note 105. 109 Caught on Tape: Planned Parenthood Aids Pimp’s Underage Sex Ring, LIVE ACTION

(Feb. 1, 2011), http://liveaction.org/blog/planned-parenthood-aids-sex-ring. 110 Eckholm & Medina, supra note 105.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 16 11-MAR-14 16:56

244 Harvard Law & Policy Review [Vol. 8

was released111 and other legislators blasted the group for “aiding and abet- ting” sex traffickers.112 Among them was Smith, who said that as a co- sponsor of the TVPA, he “found it appalling to watch Planned Parenthood personnel again and again and again offer to provide and facilitate abortions for hypothetical sex trafficking victims as young as 13.”113

Notable in these criticisms of Planned Parenthood was the vocabulary that anti-abortion advocates used: they expanded their rhetoric to include concerns about consent, coercion, and agency, rather than focusing only on the inherent immorality of abortion. As Professor Mary Ziegler wrote, the Live Action sting presented situations in which the consent of women to sex was ambiguous:

The minors in [the] videos were handicapped by age, financial dependence, and perhaps even the threat of violence at the hands of an older man. What was the role of Planned Parenthood in this equation? By providing abortion services, the videos suggested, Planned Parenthood facilitated the continued sexual exploitation of women.114

Moreover, just as the women’s consent to sex was unclear, so too was their consent to abortion: were they freely choosing an abortion, or was the choice made for them? Lila Rose, founder of Live Action, said her group’s videos revealed Planned Parenthood’s complicity in the “coercion and manipulation of women,”115 and Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said Planned Parenthood had “collaborated with the exploitation of young girls.”116

In discussing consent, coercion and exploitation, anti-abortion activists were, somewhat ironically, borrowing feminist vocabulary. Ziegler noted that the concerns of anti-abortion activists echoed “feminist claims about the ways in which women’s financial or political vulnerability informed their sexual experiences.”117 For example, in the 1980s, Catharine MacKinnon suggested that abortion could be exploitative as long as men remained in control of women’s sexuality, because it allowed men to coerce women into sex without consequences.118 In the wake of the Live Action videos, anti-

111 David Nather & Kate Nocera, House Votes to Defund Planned Parenthood, POLITICO (Feb. 18, 2011), http://www.politico.com/news/stories/0211/49830.html. Rep. Pence’s legisla- tion passed the House but died in the Senate.

112 See, e.g., 157 CONG. REC. 1162-03 (2011) (statements of Reps. Cantor, Landry, and Roby).

113 Id. (statement of Rep. Smith). 114 Mary Ziegler, Sexing Harris: The Law and Politics of the Movement to Defund

Planned Parenthood, 60 BUFF. L. REV. 701, 722 (2012). 115 Steven Ertelt, Pro-Life Groups Cheer Upcoming Probe of Planned Parenthood, LIFE

NEWS (Sept. 27, 2011, 6:37 PM), http://www.lifenews.com/2011/09/27/pro-life-groups-cheer- upcoming-probe-of-planned-parenthood.

116 Eckholm & Medina, supra note 105. 117 Ziegler, supra note 114, at 723. 118 Id. at 723 (citing CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON

LIFE AND LAW 99 (1987)).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 17 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 245

abortion activists applied this concept to sex trafficking—perhaps the most extreme example of men controlling women’s sexuality—suggesting that abortion under these circumstances is inherently exploitative. These refer- ences to consent and agency would reappear during the 2011–2013 TVPA reauthorization debate.

Live Action’s “sting” operations set the stage for conservative outrage when, later in 2011, HHS denied a grant to USCCB because it would not refer trafficking victims to abortion and contraceptive services.

B. The 2011–2013 Reauthorization Debate

The TVPA authorized HHS to expand benefits and services to victims of trafficking in the United States.119 Eligible victims can receive services such as counseling, housing and food assistance, job training, and health- care.120 HHS initially awarded grants directly to service providers, but changed its approach in 2005 to award a contract to a single organization to administer the agency’s victim-services funds nationwide through subcon- tractors.121 In 2006, HHS awarded the contract to USCCB.122

In its proposal, USCCB noted that it would not fund any activities con- trary to its religious beliefs.123 Specifically, subcontractors would not be per- mitted to “provide or refer for abortion services or contraceptive materials for our clients.”124 Some HHS officials voiced concern about this restriction during the grant review process, but the agency ultimately decided that even with the limitation, USCCB’s proposal was stronger than the other proposal the agency received, from the Salvation Army.125

In total, USCCB received roughly $16 million through the contract over more than five years and subcontracted with more than 100 organizations to provide victim services.126 While it did not disqualify any subcontracting organizations because they offered abortion or contraception, it did not reim- burse subcontractors for abortion, abortion counseling, or contraceptive ser- vices.127 According to a USCCB official, sixty percent of the organization’s subcontractors were faith-based.128 Of those, half were Catholic.129 HHS of-

119 See TVPA § 107(b). 120 Fact Sheet, Office of Refugee Resettlement, U.S. Department of Health and Human

Services (Aug. 7, 2012), http://www.acf.hhs.gov/programs/orr/resource/fact-sheet-victim-as- sistance-english.

121 ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 49 (1st Cir. 2013).

122 Id. at 50. 123 Id. at 49. 124 Id. 125 Id. at 50. 126 Id. 127 Id. 128 Peter Jesserer Smith, U.S. Bishops Bring New Weapon to Human-Trafficking Fight,

NAT’L CATHOLIC REG. (Jan. 28, 2013), http://www.ncregister.com/daily-news/u.s.-bishops- bring-new-weapon-to-human-trafficking-fight.

129 Id.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 18 11-MAR-14 16:56

246 Harvard Law & Policy Review [Vol. 8

ficials do not track the number of specific reproductive health services pro- vided,130 so it is unclear how many trafficking victims receiving federally funded services requested abortions or contraception.

In May 2011, with a new Democratic administration in place, HHS announced that it would give “strong preference” to grant applicants that would provide victims with “the full range of legally permissible gynecolog- ical and obstetric care.”131 The agency also said it would return to a compet- itive direct grant system instead of a contract-based system.132 In October, when USCCB’s contract expired, the agency rejected USCCB’s proposal for a three-year grant in favor of proposals from three other organizations, even though the bishops’ organization received the second-highest rating from the panel reviewing the proposals.133

The three-year grant amounts to a tiny portion of the anti-trafficking funding authorized in 2011,134 but the rejection of USCCB nevertheless sparked outrage among anti-abortion lawmakers and activists. What is more, the decision came at a politically sensitive time: a presidential election was just a year away, and the 2008 reauthorization of the TVPA was set to expire in late 2011. Smith and his Senate counterparts had introduced new reauthorization bills in the summer of 2011, with more than forty co-spon- sors each, but progress on the bills stalled when HHS announced its grant decisions.135 The TVPA, legislation with a decade’s worth of bipartisan con- gressional support, had rapidly become controversial. Perhaps most surpris- ingly, many of the lawmakers and interest groups holding up its reauthorization had numbered among the TVPA’s strongest initial support- ers: conservative evangelics and Catholics who opposed abortion rights.

One of those lawmakers was Rep. Smith. After championing the origi- nal TVPA in 2000 and sponsoring each of its reauthorizations in 2003,136 2005,137 and 2008,138 Smith called the HHS decision an “unconscionable abuse of power” and “pro-abortion favoritism.”139 He introduced a new reauthorization bill that would shift victim-services funding from HHS to the Justice Department and would add a conscience clause requiring that the

130 Id. 131 ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d at 50. 132 Id. 133 Khan, supra note 8. 134 See Cadei, supra note 87 (noting that the three-year grant amounts to just four percent

of total funding authorized in 2011). Other trafficking funds go to the Departments of State, Justice, Homeland Security, and Labor, among other agencies. See id.

135 See H.R. 2830, 112th Cong. (2011); S. 1301, 112th Cong. (2011); Bewley, supra note 1.

136 Summary: H.R.2620 — 108th Congress (2003-2004), CONGRESS.GOV, http://beta.con- gress.gov/bill/108th-congress/house-bill/2620 (last visited Dec. 25, 2013).

137 Summary: H.R.972 — 109th Congress (2005-2006), CONGRESS.GOV, http://beta.con- gress.gov/bill/109th-congress/house-bill/972 (last visited Dec. 25, 2013).

138 Cosponsors: H.R.7311 — 110th Congress (2007-2008), CONGRESS.GOV, http://beta. congress.gov/bill/110th-congress/house-bill/7311/cosponsors (last visited Dec. 25, 2013).

139 Oversight and Gov’t Reform Hearing, supra note 6, at 2–3.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 19 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 247

agency could not deny grant funding to any organization based on its relig- ious convictions.140

Smith and other conservative anti-trafficking advocates framed their re- sistance to the existing anti-trafficking program not in terms of the immoral- ity of abortion, but rather in the more politically palatable language of religious freedom and consent. Michael Gerson, a former policy advisor to President George W. Bush, summarized the right’s religious-freedom con- cerns when he called the HHS policy an example of “anti-religious extrem- ism” that denied grant funding to organizations based solely on their pro-life religious beliefs.141 He and other conservatives complained of a systemic anti-Catholic bias under President Obama, citing (in addition to the USCCB grant decision) an HHS mandate under the Affordable Care Act that required employers—including some religiously affiliated ones—to offer health in- surance that provides birth control free of charge.142

Reproductive rights advocates and liberals, on the other hand, argued that to continue to allow USCCB to administer all TVPA victim-services funding would itself infringe upon religious freedom. In fact, in 2009 the American Civil Liberties Union of Massachusetts sued HHS, alleging that the grant program, as then administered through USCCB, violated the Estab- lishment Clause of the First Amendment by “allowing USCCB to impose its religion on its contractors and their clients.”143 A Massachusetts federal court granted summary judgment for the ACLU in March 2012, but the First Circuit reversed, finding the case moot because the contract had expired by the time of appeal and HHS had changed its policy.144

In addition to religious freedom, some conservatives used the language of consent and agency to argue that providing abortions to trafficking vic- tims should not be a policy priority, echoing anti-abortion groups’ arguments in the aftermath of the Planned Parenthood stings. Steven Wagner, the head of the HHS trafficking program under Bush, argued that providing an abor- tion or contraceptives to a victim of trafficking “might very well be a death sentence” because such services would keep her in a state of exploitation.145 Wagner went so far as to argue that trafficking victims are incapable of pro- viding consent:

If someone is being trafficked — which is to say, under the domi- nation of a pimp/trafficker — she is by definition unable to pro- vide informed consent to an abortion or to a regime of contraception. The victim has no voice in this decision. Indeed,

140 See H.R. 3589, 112th Cong. § 201, 303 (1st Sess. 2011); Cadei, supra note 87. 141 Michael Gerson, Obama Turns His Back on Catholics, WASH. POST (Nov. 14, 2011),

http://www.washingtonpost.com/opinions/obama-turns-his-back-on-catholics/2011/11/14/ gIQABHCKMN_story.html.

142 Id. 143 ACLUM Brief, supra note 99, at 4. 144 ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir.

2013). 145 Wagner, supra note 104.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 20 11-MAR-14 16:56

248 Harvard Law & Policy Review [Vol. 8

providing such services to a victim of sexual trafficking benefits only the trafficker by getting the victim back out on the street and making money sooner. . . . The mortality rate for someone in commercial sexual exploitation is 40 times higher than for a non- exploited person of the same age. Helping a victim return to ex- ploitation more quickly by terminating a pregnancy increases the odds of death.146

Under this view, abortions further chip away at what little agency a traf- ficked woman has left—first, by subjecting her to an invasive medical pro- cedure to which she by definition cannot consent while under the control of her trafficker, and second, by facilitating her quick return to the sex industry, where she will continue to be exploited. The argument uses the language of agency and exploitation in a way that appears to empower victims by insist- ing that they, and not their traffickers, should control their reproductive health.147 Conservative efforts to center the debate on religious freedom and consent, rather than on the immorality of abortion, further reflect the “left- ward sweep” of the religious right148—its desire to frame political interven- tions in terms that build consensus, rather than highlight well-established divisions.

Reproductive rights advocates, for their part, used the concepts of agency and consent to reach the opposite conclusion, insisting that trafficked women can consent to abortion and contraception and that permitting them to do so will help them regain control of their lives. In the ACLU’s appellate brief, for example, the organization wrote: “Allowing trafficking survivors to make their own decisions about their reproductive health is important to helping them become self-sufficient, particularly because many traffickers control their victims by withholding reproductive health care.”149 The or- ganization noted that many trafficking victims do not speak English, so they rely on the organizations funded by TVPA grants to point them toward medi- cal care. Preventing nonprofits from providing referrals to abortion and con- traceptive services, the ACLU argued, is essentially “the same as denying medical services for this population.”150

Framing his objections to the Obama Administration’s grant decision in terms of religious freedom, Smith introduced a new TVPRA in December 2011 with a conscience clause, which sought to bar the government from withholding funds from groups based on their moral or religious beliefs.151 The strategy was familiar to Smith; he had introduced similar conscience

146 Id. 147 While evidence suggests that traffickers indeed coerce some victims into having abor-

tions, reports also indicate some victims voluntarily choose them. See Written Testimony from Susie Baldwin supra note 103, at 7–8. It is also worth noting that many women receiving TVPA-funded services may no longer be under the control of their traffickers.

148 Bernstein, supra note 19, at 144. 149 ACLUM Brief, supra note 99, at 7. 150 Id. at 8. 151 See H.R. 3589, 112th Cong. § 303 (1st Sess. 2011).

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 21 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 249

clauses in federal-employee benefits legislation in the late 1990s152 and in the 2003 global AIDS legislation known as the President’s Emergency Plan for AIDS Relief (PEPFAR).153 Smith’s conscience clause would have pro- hibited the government from requiring an organization to “endorse[,] . . . make a referral to, . . . or otherwise participate in any program . . . to which the organization has a religious or moral objection” and from withholding grants or contracts from groups based on their refusal to endorse or provide such services.154 Smith’s new legislation garnered the support of sixteen co- sponsors, all Republicans155—not enough to pass, but enough to grind the reauthorization process to a halt.156

Interviewees involved in the reauthorization process said momentum to pass a reauthorization began to build again in December 2012, after the pres- idential election.157 By that time, the political imperatives to oppose the Obama Administration’s agenda had faded, as had some of the outrage over the USCCB grant denial. Perhaps most importantly, first-term Sen. Marco Rubio (R-FL) had decided to back the measure.158 Rubio had made human trafficking one of his key foreign policy concerns and had the political capi- tal to rally support for the reauthorization.159 Rubio and Sen. Patrick Leahy’s (D-VT) first attempt to pass the reauthorization—without a conscience clause160—failed when Sen. Tom Coburn (R-OK) objected to the bill’s cost and the “wasteful” bureaucracy the TVPA had created, even though the new bill cut spending levels by a third compared to the prior TVPRA.161 Leahy and Rubio finally succeeded in February by tacking the TVPA reauthoriza- tion onto the reauthorization of the Violence Against Women Act (VAWA), a landmark sexual-assault and domestic-violence prevention bill whose reauthorization had also languished in the prior Congress.162 Concerned that

152 Californians, Federal Employees Secure Contraceptive Coverage, 2 GUTTMACHER REP. ON PUB. POL’Y 11 (1999), available at http://www.guttmacher.org/pubs/tgr/02/5/ gr020510a.pdf.

153 Melissa Gira Grant, Anti-Prostitution Pledge Heads to Supreme Court, NATION (Apr. 9, 2013, 3:22 PM), http://www.thenation.com/blog/173955/anti-prostitution-pledge-heads-su- preme-court# (describing PEPFAR’s conscience clause); Ilene Leventhal, Note, PEPFAR: Preaching Abstinence at the Cost of Global Health and Other Misguided Relief Policies, 24 TEMP. INT’L & COMP. L.J. 173, 186 (2010).

154 See H.R. 3589, 112th Cong. § 303 (1st Sess. 2011). 155 Cosponsors: H.R.3589 — 112th Congress (2011-2012), CONGRESS.GOV, http://beta.

congress.gov/bill/112th/house-bill/3589/cosponsors (last visited Dec. 25, 2013). 156 See Bewley, supra note 1. 157 Telephone interview with Jesse Eaves, supra note 98; Telephone interview with Cory

Smith, Senior Policy Counsel, Alliance to End Slavery and Trafficking (Apr. 24, 2013) (notes on file with author). See also Cadei, supra note 87.

158 Cadei, supra note 87. 159 Id. 160 See Telephone interview with Cory Smith, supra note 157. 161 See Cadei, supra note 87 (quoting Sen. Coburn as saying the TVPA had created a

“growing bureaucracy of anti-trafficking programs that is wasteful, mismanaged, and duplicative”).

162 See David Abramowitz, Passage of Human Trafficking Bill Sends Clear Message, THE HILL (Mar. 8, 2013, 8:45 PM), http://thehill.com/blogs/congress-blog/foreign-policy/287087- passage-of-human-trafficking-bill-sends-clear-message; Telephone interview with Cory Smith, supra note 157.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 22 11-MAR-14 16:56

250 Harvard Law & Policy Review [Vol. 8

a lawmaker might try to amend the measure to include a conscience clause, Leahy added the TVPRA as a “second-degree” amendment to VAWA—one that generally cannot be amended.163 The Senate accepted the amendment 93–5,164 and voted 78–22 to pass VAWA.165

When the bill moved to the House, Smith and conservative interest groups continued to voice concern about the lack of a conscience clause. Concerned Women for America, the Family Research Council, and the USCCB wrote letters to legislators expressing their concern about the bill’s failure “to protect the conscience of organizations like the U.S. Conference of Catholic Bishops, who seek to protect trafficking victims but oppose abortion.”166 Ultimately, Smith and 137 other House Republicans voted against the reauthorization of VAWA167—a bill controversial among Republi- cans even without the conscience issue.168 In a floor speech the day of the vote, Smith did not explicitly say that the absence of a conscience clause induced his “no” vote,169 but interviewees believed that it remained his main objection.170 On the day the reauthorization passed the House, Smith re- introduced a competing measure with a conscience clause, signaling that the abortion issue remained a concern.171 However, that move proved merely symbolic, as the measure’s fate was sealed by day’s end.

V. LEARNING FROM THE GRIDLOCK: RECOMMENDATIONS

Abortion is politically powerful. Like prostitution, abortion implicates deeply held beliefs about morality, faith, individual autonomy, women’s rights, and sexuality. The recent reauthorization debate reveals that, regard- less of one’s beliefs about the merits of adding a conscience clause to the TVPA, there is insufficient political support for such a move.172 Thus, at-

163 Telephone interview with Cory Smith, supra note 157. 164 159 CONG. REC. 433, 609–10 (2013). 165 Id. at 616. Notably, Sen. Rubio voted against the reauthorization of VAWA despite his

support for reauthorizing the TVPA. 166 Letter from Penny Nance, Chief Exec. Officer, Concerned Women for Am., to U.S.

House of Reps. (Feb. 27, 2013) (on file with author); see also Letter from Jayd Henricks, Dir. of Gov’t Relations, U.S. Conference of Catholic Bishops, to U.S. House of Reps. (Feb. 27, 2013) (on file with author); Letter from Thomas McClusky, Senior Vice President, Family Research Council, to U.S. House of Reps. (Feb. 27, 2013) (on file with author).

167 See Final Vote Results for Roll Call 55, OFF. OF THE CLERK, U.S. HOUSE OF REPRE- SENTATIVES (Feb. 28, 2013), http://clerk.house.gov/evs/2013/roll055.xml#N.

168 For an explanation of Republican objections to VAWA, see Adam Serwer, Rights Groups to GOP: Stop Watering Down the Violence Against Women Act, MOTHER JONES (Feb. 25, 2013, 9:52 AM), http://www.motherjones.com/mojo/2013/02/gop-vawa-bill-lgbt-undocu- mented-immigrants.

169 159 CONG. REC. 29, 744 (2013) (statement of Rep. Smith). Rather, Smith criticized the bill for reducing funding to the TIP Office and for shifting some anti-trafficking responsibili- ties to the State Department’s regional offices. Id.

170 See, e.g., Telephone interview with Cory Smith, supra note 157. 171 See H.R. 898, 113th Cong. (2013). 172 As mentioned above, the vote to add the reauthorization to VAWA passed the Senate—

without a conscience clause—by a wide margin of 93–5. See supra note 164 and accompany- ing text. Moreover, anti-trafficking advocates indicated that few, if any, lawmakers opposed

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 23 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 251

tempting to insert a conscience clause or similar provision into future reauthorizations could eviscerate the once-solid bipartisan support for the legislation, threatening the existence of the entire anti-trafficking regime. Moreover, even if lawmakers could win enough support to pass a reauthorization with such a clause—effectively capturing the anti-trafficking program by realigning it with anti-abortion and anti-contraception ideol- ogy—the consequences for victims’ health could be significant.

While adding conscience clauses to grant programs may seem like a harmless move toward religious freedom and nondiscrimination, some scholars have argued that these provisions can significantly reduce access to certain health services. PEPFAR, which has authorized $63 billion over ten years toward the prevention of HIV, tuberculosis, and malaria,173 contains a conscience clause written by Smith—nearly identical to the one he proposed for the TVPA—that allows faith-based organizations receiving federal grants to opt out of offering condoms and other contraceptives, abortions, and other services that do not conform to their religious beliefs.174 According to one scholar, because of this provision and other funding limitations, few organi- zations in the program provide contraception and abortion services or refer- rals, and those that do offer such services “have been deterred from treating the most at-risk communities or integrating their work with organizations that do.”175 Similarly, advocates who believe that trafficking victims should be able to obtain contraception and abortion services have reason to fear that adding a conscience clause to the TVPA could restrict such access, particu- larly for victims without the resources to seek medical care outside the program.176

At least for now, Congress has averted any consequences that might arise from a conscience clause. Advocates hailed the passage of the recent reauthorization without a conscience clause as a sign of the TVPA’s contin- ued bipartisan support, or at the very least, lawmakers’ awareness that re- jecting a bill that purports to tackle “human slavery” might not win voters’ hearts. But the new reauthorization will expire in 2017. In just a few years, legislative gridlock over trafficking victims’ access to abortion and contra- ception may return. Whether reproductive health services will become a sticking point in negotiations over the next reauthorization may depend in

the final legislation on conscience grounds. Telephone Interview with Cory Smith, supra note 157.

173 See Reauthorization of PEPFAR, The United States Leadership Against HIV/AIDS, Tu- berculosis and Malaria Act: A Side-by-Side Comparison to Current Law, KAISER FAM. FOUND. (July 2008), http://kaiserfamilyfoundation.files.wordpress.com/2013/01/7799.pdf.

174 See Leventhal, supra note 153, at 186. 175 Id. at 193. Of course, where faith-based organizations fill a gap that other groups can-

not or will not—which may be the case in some international aid programs like PEPFAR–it could be argued that providing incomplete healthcare is better than providing none at all. Further, Leventhal explains that the conscience clause was not the only factor that limited access to reproductive health services in PEPFAR. See id. at 182–97.

176 See supra notes 149–50 and accompanying text for summary of reproductive rights advocates’ concerns along these lines.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 24 11-MAR-14 16:56

252 Harvard Law & Policy Review [Vol. 8

part on factors beyond the control of anti-trafficking advocates: for example, whether Congress remains as deeply partisan as it currently is, or whether lawmakers like Smith—who are active in both the anti-trafficking and anti- abortion movements—remain in Congress. However, advocates who want to avoid miring the TVPA in further controversy can take several steps to prevent abortion politics from re-entering the anti-trafficking sphere, such as facilitating compromise between the executive branch and religious groups, timing the expiration of reauthorization bills wisely, and broadening the con- cept of trafficking to reach beyond the sexual exploitation of women.

Improving the relationship between the executive branch and faith- based groups may help ensure that the TVPA’s path to reauthorization is smoother in 2017. Conservative politicians and activists are not the only ones who have perceived some tension between the Obama Administration and, in particular, Catholic groups; scholars, too, have noted the “increas- ingly strained relations between the two”177 that have led to a “political maelstrom.”178 If faith-based groups had not seen the HHS grant decision as symptomatic of a larger war on Catholics waged by the executive branch, perhaps they would have opposed the decision less vehemently. While there is no simple resolution to this problem, compromise may be possible in the context of trafficking. News reports suggest HHS and USCCB have dis- cussed a potential agreement that would allow the latter to continue receiv- ing grants in some capacity;179 this could reduce political controversy during the next reauthorization debate. For example, lawmakers and regulators might consider splitting victim-services grant money into separate pots: one for healthcare and another for non-health-related services, such as housing, job training, and legal assistance. In such a bifurcated program, USCCB could provide non-health-related services without ethical objection, and HHS could offer victims access to the full range of reproductive health- care.180 By proposing compromises and promoting dialogue between faith- based groups and the administration, anti-trafficking advocates may be able to stave off a fight over the next TVPA reauthorization.

Advocates should also push for future reauthorizations to be introduced at the right time: soon after a presidential election. Introducing the current reauthorization in 2011, with an election just a year away, made it possible

177 Daniel J. Rudary, Note, Drafting a “Sensible” Conscience Clause: A Proposal For Meaningful Conscience Protections for Religious Employers Objecting to the Mandated Cov- erage of Prescription Contraceptives, 23 HEALTH MATRIX 353, 393 (2013).

178 Robin F. Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV. 1417, 1418 (2012).

179 See Cadei, supra note 87. 180 A bifurcated program could be more difficult for HHS to administer, and could mean

victims receive care that is not as well integrated as it would be under the current program, in which each grantee can refer victims to the full range of necessary services. It is suggested not as a surefire solution to this complicated problem, but rather as an example of the type of rethinking that advocates might pursue.

\\jciprod01\productn\H\HLP\8-1\HLP102.txt unknown Seq: 25 11-MAR-14 16:56

2014] A New Form of “Ideological Capture” 253

for Obama’s opponents to use the TVPA for political purposes. Soon after the 2012 election, however, roadblocks to the reauthorization cleared. The 2017 reauthorization should be introduced after, not before, the 2016 elec- tion. Because pressure from interest groups plays a key role in putting legis- lation on the congressional agenda, anti-trafficking advocates should work together—and with allies in Congress—to properly time the next reauthorization.181

Finally, and perhaps most importantly, a shift toward viewing traffick- ing as a human rights problem affecting men and women—rather than as a problem of sex and sexual morality primarily affecting women—would re- duce the power of the anti-abortion movement in the anti-trafficking field. As we have seen, abortion entered the trafficking sphere in part because abolitionists framed trafficking as an issue that revolves around sex and pri- marily affects vulnerable women. Focusing on restoring the human rights of victims of all kinds of trafficking would reduce the tunnel vision on women, sex, and sexual morality—topics that readily give rise to abortion debates— and would expand the anti-trafficking movement to benefit a wider range of exploited workers.

181 Pushing debate on the reauthorization until after the 2016 election also ensures that debate begins with a new administration in the White House. Because tension between the current administration and Catholic groups may have contributed to the lengthy reauthoriza- tion debate in 2011–2013, reauthorization under a new administration may be smoother. See supra notes 178–80 and accompanying text.

Copyright of Harvard Law & Policy Review is the property of Harvard Law School Journals and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.