Bench Memos

Law & the Courts

Victory for Texas Catholic Conference

Last summer, I discussed (1) the outrageous discovery order that would have intruded on the internal communications of the Catholic bishops in Texas, who weren’t even parties to the case in which abortion providers challenged a provision of Texas law that would require them to bury or cremate fetal remains; and (2) the strong Fifth Circuit ruling blocking that discovery order.

In good news from today’s order list, the Court denied the certioriari petition in which abortion providers challenged that Fifth Circuit ruling.

The abortion providers’ certiorari petition was extraordinary in at least one respect: It called for the Court to exercise its supervisory power to vacate the Fifth Circuit’s ruling because of alleged legal errors and because of the panel’s supposed “flagrant departure from the norms of judicial conduct.”

Amazingly, the petitioners’ lead item in support of their claim of “flagrant departure” was that the majority opinion described the challenged statute as “a law specifying legitimate methods for disposal of fetal remains.” But the majority plainly was accurately describing what the law did, not (contrary to what petitioners claimed) expressing its own view of which methods were legitimate.

As the Becket Fund pointed out in its brief in opposition to the certiorari petition:

Most of Petitioners’ ire is reserved for the two-page concurring opinion of Judge Ho. But he merely made some factually accurate observations, expressed regret that the case proceeded in the manner it had, and (accurately) described the point of view of the Bishops. He gave no instructions to the lower court and did not step out of bounds of the role of a nonbinding concurring opinion, which unsurprisingly may reveal a judge’s views about a case.

Given the stridency of the abortion providers’ certiorari petition, it’s noteworthy that there was not a single recorded dissent from the Court’s denial.

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