AUSTIN, Texas (CN) — The federal judge who will decide whether Texas may require healthcare providers to bury or cremate fetal remains said in court Monday that he will not rule based on his personal beliefs but on whether the law unconstitutionally impairs a woman’s right to abortion.
U.S. District Judge David Ezra will hear arguments and witness testimony this week in a challenge brought by reproductive healthcare providers who say the state’s fetal burial rules violate women’s freedom of belief and arbitrarily restrict access to medical services.
The fetal burial requirements are contained in Senate Bill 8, an omnibus anti-abortion law passed during the 2017 legislative session. The purpose of the rules, according to the bill, is to “express the state’s profound respect for the life of the unborn.”
The rules require healthcare providers to bury or cremate fetal remains from abortions, miscarriages and ectopic pregnancies. Under current law and practice, such remains are typically incinerated and disposed of in a sanitary landfill.
Ezra, who temporarily enjoined enforcement the law in January, began the scheduled five-day trial Monday by assuring attorneys that he has “no predisposition” in the case, referring to unusual Fifth Circuit opinions issued Sunday night which seem to suggest otherwise.
The Fifth Circuit ruled that Ezra improperly ordered a group of Roman Catholic bishops to produce their emails and other private documents to the plaintiffs. The Texas Conference of Bishops is not a party to the suit, but its executive director testified on behalf of the state that the bishops would be willing to provide free burial of fetal remains in Catholic cemeteries.
Fifth Circuit Judge James Ho wrote in concurrence that he wondered why Ezra required the bishops to comply with the discovery order within 24 hours after it was issued, “if not in an effort to either evade appellate review — or tax the Bishops and their counsel for seeking review.”
Ho, recently appointed to the Fifth Circuit by President Donald Trump, said the proceedings made him wonder if discovery was sought “to retaliate against people of faith for not only believing on the sanctity of life — but also for wanting to do something about it.”
Ezra said Monday that he moved so quickly because he had a limited time to try the case, not because he had any bias against the bishops.”
“Nothing could be further from the truth,” Ezra said.
Ezra said he would ignore the “extraordinary” Fifth Circuit opinions — which include a concurrence and a dissent from the three-judge panel — but that he had asked state attorneys if they wanted to ask for his recusal because of “any perceived bias.” The state declined to do so.
Fifth Circuit Judge Gregg Costa wrote a dissent that concludes with a shot aimed directly at Ho and his colleague in the majority, Fifth Circuit Judge Edith Jones: “Even more troubling are the potshots directed at the district court, and the concurring opinion then piles on,” Costa wrote in wrapping up his 11-page dissent.