Cynthia M. Allen

Catholic church wins fight to withhold communications in fetal burial case

Anti-abortion activists demonstrate June 27 at the Supreme Court in Washington as justices considered previous Texas abortion restrictions.
Anti-abortion activists demonstrate June 27 at the Supreme Court in Washington as justices considered previous Texas abortion restrictions. AP

The 2016 presidential election presented people who value religious freedom with a conundrum.

The moral character of both major party candidates made voting for either an unsavory task. But Trump’s campaign promise to appoint conservative judges who would defend the First Amendment’s guarantee of religious liberty was ultimately enough to persuade many of them to vote for Trump.

From the perspective of those voters, that gamble is paying off in spades. The latest example occurring this week is a lawsuit involving the Texas Conference of Catholic Bishops (TCCB).

TCCB is not a party in Whole Woman’s Health v. Smith, in which abortion providers are challenging the Texas law that would require them to bury or cremate fetal remains. That hasn’t shielded them from abusive litigation and harassment.

The Conference, an abortion opponent and witness in the case, became a target of the abortion industry when it showed an act of mercy to public policy opponents: the bishops offered free cremation and burial services to the children lost to abortion.

That grace was lost on the plaintiffs whose case has hinged on the theory that the law, because of its associated financial costs, places an “undue burden” on the constitutionally protected right to abortion.

By offering to mitigate those costs, TCCB undermined the plaintiffs’ entire case.

Whole Women’s Health slapped a third-party subpoena on the Conference, demanding it provide thousands of pages of internal documents, including those referencing embryonic and fetal remains.

The Conference provided more than 4,000 pages of documents, involving communications with people outside the organization. But the plaintiffs demanded hundreds of additional internal Conference communications between the bishops and their staff.

TCCB’s ability to testify at trial was contingent on compliance. “The abortion providers were forcing the bishops into choosing between supporting their policy preferences and protecting their privacy,” said Diana Verm, counsel at the Becket Fund for Religious Liberty, which represented TCCB in this case.

The plaintiffs seemed convinced the bishops would choose privacy, and the court saw fit to make compliance nearly impossible.

On Sunday, June 17th, district court Judge David Ezra doubled down, giving the Conference only 24 hours to comply with the subpoena.

It’s difficult to overstate the chilling effect of such an order on religious groups. After all, the wall of separation goes both ways: it limits the influence of religious entities on the public square, AND expressly protects religious institutions from government intrusion. What could be more invasive than a federal court forcing Catholic bishops to turn over internal communications to a public policy opponent?

“Religious liberty means nothing if trial lawyers can mobilize the power of the federal judiciary to harass the Catholic Church,” said Kelly Shackelford, President, CEO and Chief Counsel at the First Liberty Institute.

Indeed. A panel of Fifth Circuit judges, including recently confirmed Trump appointee James Ho, agreed.

In his concurring opinion, Judge Ho did not mince words. “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,” he wrote.

The Fifth Circuit ruling means TCCB can testify at trial, and the precedent it sets will ensure that people of faith can act on their beliefs without relinquishing privacy or suffering retaliation by the state.

It also means Trump is following through on his campaign promise to appoint judges who understand that the First Amendment guarantees more than simply “freedom of worship”. For many who gambled and voted for him based on judges, that payoff has made their votes worthwhile.