In the district-court proceeding in Whole Woman’s Health v. Smith, abortion providers are challenging a provision of Texas law that would require them to bury or cremate fetal remains—and they are abusing and harassing the Texas Catholic Conference of Bishops in order to try to get their way. Even worse, federal district judge David Ezra is piling on. A Fifth Circuit motions panel has put a temporary halt to the travesty, and it might make that halt permanent soon. If it doesn’t, the en banc Fifth Circuit should.
Let’s dive into the details:
The plaintiff abortion providers contend that the legal provision requiring them to bury or cremate fetal remains imposes an “undue burden” on abortion in violation of the Roe/Casey regime. In January, Judge Ezra issued a preliminary injunction blocking the provision from taking effect.
One obstacle to the plaintiffs’ undue-burden claim is that the Catholic bishops in Texas have offered to provide free or low-cost burial of fetal remains.
Neither the Catholic bishops nor the Texas Catholic Conference of Bishops are a party in the litigation. But in a transparent effort to punish the Catholic bishops, the plaintiffs served a massive third-party subpoena on the Conference that called for it to provide:
- All Documents concerning EFTR [embryonic and fetal tissue remains], miscarriage, or abortion.
- All Documents concerning communications between [the Conference] and current or former employees of DSHS, HHSC, the Office of the Governor of Texas, the Office of the Attorney General of Texas, or any member of the Texas Legislature, since January 1, 2016.
- All documents concerning the Act, the Amendments, or this lawsuit.
After some wrangling, the Conference provided 4,321 pages of documents, including all responsive documents involving communications with people outside the Conference. But the plaintiffs insisted on obtaining some 300 internal Conference communications among the bishops and their staff.
On the afternoon of Friday, June 8, a magistrate ordered the Conference to file any motion to quash the subpoena by 9 a.m. the following Monday and set a hearing for Wednesday, June 13. Even before the magistrate had ruled on the motion, Judge Ezra somehow saw fit to enter an order shortening the time for the Conference to appeal the magistrate’s ruling from the usual 14 days to less than 24 hours. The magistrate denied the Conference’s motion to quash, and the Conference appealed the denial to Judge Ezra.
Here’s where things get really bizarre: At 12:01 p.m. on Sunday, June 17, Judge Ezra rejected the Conference’s appeal and gave it only 24 hours to comply with the subpoena.
On June 18, the Conference filed an appeal of Judge Ezra’s ruling and an emergency motion for a stay. A Fifth Circuit panel granted the emergency motion for a stay that same day. At the same time, it ordered an expedited appeal of the matter.
Some broader observations:
1. Judge Ezra’s procedural shenanigans make me wonder whether he set out by design to ruin the Catholic Sabbath for the Conference and the Catholic bishops of Texas. What good reason could there have been to issue an order at 12:01 p.m. on a Sunday—on Father’s Day, no less—and to require compliance with the subpoena within 24 hours? How could there be any reason for such a rush given that Ezra’s preliminary injunction against the law remains in effect?
2. Judge Ezra’s order (available at pp. 241-257 here) fails to provide a coherent account of how the Conference’s internal communications could have any plausible bearing on the case. He states that the plaintiffs “seek to gather facts on the Catholic Church’s burial services offer—namely how, when, and for how long burial services will be provided.” But any lack of clarity on the terms of offer could be resolved through any number of alternative means; a fishing expedition into the Conference’s internal communications is the most burdensome means.
3. The Conference’s emergency motion (prepared by the Becket Fund for Religious Liberty and local counsel) presents a persuasive account that enforcement of the subpoena would severely intrude on internal church affairs and violate the religious liberty of the Conference and the Catholic bishops of Texas.