A federal appeals court reversed a lower court’s order requiring the Roman Catholic bishops and archbishops of Texas to turn over their private deliberations on what they describe as doctrinal and moral issues to a chain of abortion clinics.
“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,” Judge James Ho wrote in a concurring opinion.
“The abortion providers’ effort to gain the TCCB’s internal communications causes the court to wonder if it is an attempt “to retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it,” continued Ho.
The case involves a challenge by the Whole Woman’s Health abortion clinic network — as well as Texas abortion doctors and other abortion providers — to a 2016 state law that requires fetal remains from abortions or miscarriages to be buried or cremated rather than discarded in a landfill or by other means. The Texas Conference of Catholic Bishops (TCCB) is not a party to the lawsuit, but Whole Woman’s Health sought its emails seemingly because the bishops have offered free burial for fetal remains in the church’s cemeteries in the state.
The Ethics & Religious Liberty Commission (ERLC) had said in a friend-of-the-court brief a failure to vacate the order would also endanger the religious freedom of congregationally governed churches.
ERLC President Russell Moore applauded the Fifth Circuit’s opinion.
“The court’s ruling, which affirms religious liberty, as well as the sanctity of human life, is a victory for all Americans,” Moore said in a written statement. “Churches and religious organizations shouldn’t be forced to disclose private information that could sabotage their ability to protect human dignity and engage in the public square. I am thankful the court acknowledged this in their decision.”
Moore said he prays the bishops and other religious organizations “will continue to stand firm in their convictions as we work to ensure the state respects their constitutional rights.”
Magistrate Judge Andrew Austin refused June 13 to suppress Whole Woman’s Health’s subpoena of emails and attachments involving TCCB Executive Director Jennifer Allmon since Jan. 1, 2016, on the disposal of the remains of aborted babies. The documents sought “do not address religious doctrine or church governance,” Austin wrote in his order.
On June 18, the Fifth Circuit Court halted the order at the TCCB’s request and called for the filing of briefs in the appeal by June 25.
In the Fifth Circuit’s July 15 divided opinion that blocked Austin’s order, Judge Edith Jones wrote for a three-member panel to say past U.S. Supreme Court opinions “have protected religious organizations’ internal deliberations and decision-making in numerous ways.”
While none of those decisions have directly addressed discovery orders as in this case, “the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law,” she wrote.
Problems regarding both the First Amendment’s protection of religious freedom and prohibition on government establishment of religion “seem inherent in the court’s discovery order,” Jones said. “That internal communications are to be revealed not only interferes with TCCB’s decision-making processes on a matter of intense doctrinal concern but also exposes those processes to an opponent and will induce similar ongoing intrusions against religious bodies’ self-government.”
Judge Gregg Costa dissented from the majority opinion, saying the TCCB documents sought by the abortion providers in this case “do not come close to the concerns” addressed in the Supreme Court’s line of decisions on religious free exercise and establishment of religion.
Before Austin’s order, the Texas bishops provided more than 4,300 pages of external communications at the request of Whole Woman’s Health but they refused to grant about 300 internal communications that included “private theological and moral deliberations,” according to Becket, a religious liberty organization representing the TCCB.
Eric Rassbach, vice president and senior counsel at Becket, said in a written release after the Fifth Circuit decision, “Letting trial lawyers put religious leaders under constant surveillance doesn’t make sense for Church or State. The Court was right to nip this abuse of the judicial process in the bud.”
— by Tom Strode | BP
CNJ staff contributed to this report