Supreme Court lets ruling protecting Texas bishops from subpoena on abortion talk stand

By Michael Gryboski, Mainline Church Editor Tuesday, February 19, 2019

The U.S. Supreme Court will not hear an appeal from a case on whether a Texas-based Roman Catholic Church body must disclose its private discussions on abortion and fetal burial. 

In an order released Tuesday, the high court denied certiorari in the case of Whole Woman’s Health et al v. Texas Catholic Conference of Bishops, allowing an earlier decision in favor of the Catholic body to stand. 

Eric Rassbach, vice president and senior counsel at Becket, a law firm involved in the case on behalf of the Catholic Bishops, celebrated the Supreme Court’s decision. 

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“Thank goodness the Supreme Court saw this appeal for what it was: a nasty attempt to intimidate the bishops and force them to withdraw their offer to bury every child aborted in Texas,” said Rassbach in a statement released Tuesday.

“Abortion groups may think the bishops ‘troublesome,’ but it is wrong to weaponize the law to stop the bishops from standing up for their beliefs.” 

In 2016, multiple abortion providers filed a lawsuit against Texas over regulations requiring that aborted fetuses be given a proper burial rather than disposing of them in landfill or sewers, as previously allowed. 

The abortion providers argued that the regulations violated Due Process rights by placing a burden on the woman seeking an abortion to find and arrange for a dignified burial.

At the preliminary injunction hearing, Catholic Conference Executive Director Jennifer Allmon testified in favor of the regulations, noting that the Conference was willing to work with Catholic churches to provide free common burials.  

In March 2018, the abortion providers served the Catholic Conference a “third-party subpoena” demanding all documents regarding abortion, embryonic and fetal tissue remains, as well as all communication, including confidential, the bishops may have had with state government officials or the state legislature.

In response, the bishops filed a motion against the subpoena in April of last year, arguing that the order violated the First Amendment and the Religious Freedom Restoration Act. 

Last July, a three-judge panel of the United States Court of Appeals for the Fifth Circuit ruled 2-1 in favor of the bishops, with Circuit Judge Edith Jones writing the majority opinion.

“TCCB has been challenged by the plaintiffs to either produce internal communication documents or withdraw its witness. This looks like an act of intimidation,” wrote Judge Jones, overturning a district court decision.

“This burden on TCCB’s constitutional right to advocate in the public square cannot be ignored, nor can the burdens TCCB has shown were created by this intrusive discovery request: relations with other parties in the faith impaired, internal modes of discussion upended, and participation by some Catholic cemeteries deterred.” 

However, Circuit Judge Gregg Costa dissented from the majority, arguing that it would be “unusual” if a party had decided to “not seek documents from a witness it plans to cross examine at trial.” 

“What the majority opinion views as an improper threat—that the discovery request will go away if the Conference witness doesn’t appear—is just an obvious point that if there is no witness, then there is no need to request documents that might impeach her testimony,” wrote Judge Costa.