A federal appeals court this weekend halted an abortion provider’s attempts to intimidate Texas’ Catholic bishops, issuing an opinion savaging both their underhanded tactics and the lower court judge who went along with them.
The story is complicated, but the payoff is worth it.
The Whole Woman’s Health abortion chain is suing Texas over a law requiring that “healthcare facilities bury or cremate fetal tissue from abortions.” The abortion chain argues the regulation places an “undue burden” on the constitutionally protected right to abortion.
However, when the state passed the burial law a few years ago, the Texas Catholic Conference of Bishops offered to bury the remains of aborted children for free in Catholic cemeteries, explaining that they’d bear the responsibility so as to offset any financial burden the regulation might create.
The conference’s involvement creates a hiccup for the abortion chain’s lawsuit. If the conference is shouldering the cost of the burials, it undercuts the argument that some “undue burden” is being suffered by Whole Woman’s Health.
And so in order to prevent this argument from being heard at trial, Whole Woman’s Health served a third-party subpoena on the conference, demanding that it turn over roughly thousands of pages of internal documents dating back to 1965. Remember: The conference isn’t even a party in the litigation, as Ed Whelan noted in National Review.
Outrageously enough, the presiding judge, David Ezra, gave the subpoena the green light, implicitly giving his approval to the abortion provider’s efforts to cow the conference into withdrawing its witness.
A three-judge panel on the 5th Circuit Court of Appeals was not impressed, however. A 2-1 opinion, written by Judge Edith Jones, takes apart the subpoena as well as Ezra’s decision to give it his seal of approval.
Judge Jim Ho’s concurring opinion is no kinder. It includes lines like, “It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.”
“The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains,” Ho writes. “By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains. But from the proceedings below, you would think the opposite were true.”
He added, “Those proceedings are chronicled in [the 5th Circuit’s ] comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it.”
There’s more where that comes from.
