Federal appeals court sides with Texas bishops in privacy case

Austin, Texas, Jul 16, 2018 / 12:45 pm

A federal court of appeals sided with the Texas Catholic bishops in a July 15 ruling blocking a request from abortion groups to access the bishops' private communications regarding abortion.

"Hitting churches with subpoenas to win the culture wars was a bad idea from the start," said Eric Rassbach, vice president and senior counsel at Becket, which represents the Texas Conference of Catholic Bishops.

"We are glad that the Fifth Circuit recognized the deep problems with allowing lawyers to use the power of the court system to probe the private religious discussions of religious groups," he continued. "That is especially so here, where the plaintiffs oppose the Texas Catholic bishops' right to participate equally in public discourse."

Whole Woman's Health, a chain of Texas abortion facilities, filed suit against the State of Texas two years ago over a law that requires aborted fetal remains to be either buried or cremated. Previously, the remains were treated as medical waste and thrown into a landfill.

Although the bishops are not party to the lawsuit, Whole Woman's Health attempted to acquire various communications from the Texas Conference of Catholic Bishops concerning abortion. These included private email and internal communications between bishops.

The bishops had previously offered to bury aborted fetal remains for free in Catholic cemeteries in Texas.

A trial court initially ruled that the bishops must hand over the emails and other documents. The bishops then requested emergency protection from the Fifth Circuit Court of Appeals, which last month granted temporary protection and ordered additional briefs to be submitted by June 25.

The July 15 decision permanently blocks the order for the bishops to hand over the documents.

In his concurring opinion, Circuit Judge James Ho stressed the importance of religious liberty.

"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," he said. "By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains."

The Texas bishops have emphasized the importance of being able to deliberate privately and freely.

"Children are not disposable," said Bishop Edward J. Burns from the Diocese of Dallas, comparing the lawsuit to the policy of separating undocumented children from their parents at the U.S. border.

"We believe that life is sacred from the moment of conception. We also believe that we have a right to discuss in private how to address this issue and uphold the dignity of every human life, and that while upholding the sacredness of life may seem at odds with some people, our religious liberties and religious rights should not be eroded."