Fifth Circuit Rules for Bishops in Dispute With Abortion Clinics

(CN) – The Fifth Circuit on Monday stayed a lower court’s order requiring a group of Roman Catholic bishops in Texas to hand over their emails and other private documents to abortion providers, in a dispute over a state rule that forces women to bury the remains of their miscarried or aborted fetuses.

In 2016, a coalition of women’s health care providers filed a lawsuit challenging the state’s fetal-burial rule, calling the regulation unconstitutional and a “pretext for restricting abortion access.”

A federal judge in Austin temporarily blocked Texas from enforcing the rule, which prohibits health care facilities from disposing fetal remains in sanitary landfills and requires that all fetal tissue, regardless of gestation period, be cremated or buried, be they from abortion, miscarriage or ectopic pregnancy.

The Texas Conference of Bishops is not a party in the suit, but its executive director, Jennifer Carr Allmon, testified on behalf of the state in legal proceedings, telling a federal judge that the Catholic Church would be willing to provide free burial of fetal remains in Catholic cemeteries.

On Sunday, U.S. District Judge David Alan Ezra ruled that the Texas Conference of Bishops must produce, within 24 hours, certain emails to Allmon about abortion.

However, the Fifth Circuit halted Ezra’s order on Monday and granted the bishops an emergency stay.

The bishops are represented by Becket, a Washington, D.C.-based religious advocacy law firm, and by Austin-based attorney Steven Lavatino.

“In an age where Facebook watches our every move, privacy is more important than ever,” Becket vice president Eric Rassbach said in a statement. “Government should not have unbounded power to insert itself into the private conversations of any group, much less the leadership of the Catholic Church. Constant surveillance of religious groups is a hallmark of totalitarian societies, not a free people.”

In a statement Tuesday, Joe S. Vásquez, bishop of the Roman Catholic Diocese of Austin, said the court’s protection was “vital” for the church.

“As bishops we have not just a right but a duty to speak out on issues that concern justice, mercy, and a consistent ethic on life,” Vásquez said. “But if we bishops are to speak with one voice, we must be able to deliberate with one another privately to reach a consensus.”

The bishops argued that the production of their internal communications would violate their First Amendment rights, and that the amendment’s free exercise and establishment clauses shield the church’s internal affairs and should protect the bishops’ internal communications from discovery.

Judge Ezra had ruled on Sunday that the plaintiffs’ discovery request did not infringe upon the church’s rights.

“The government is not requesting documents and does not work to monitor or evaluate [the conference’s] religious activities,” Ezra said in the June 17 ruling. “Instead, private entities providing healthcare services to seek to gather facts on the Catholic Church’s burial services offer — namely how, when, where, and for how long burial services will be provided.”

“The fact that [the conference] is a religious organization does not immunize its internal communications regarding those services from discovery,” Ezra added.

In a June 14 motion opposing the bishops’ attempt to prevent discovery, the women’s health care providers argued that permitting Allmon’s testimony without the discovery of her relevant communications would be prejudicial, and that her emails relating to the disposition of fetal or embryonic tissue are not protected by the First Amendment.

“Evidentiary privileges cannot be used as both sword and shield,” the plaintiffs said in the motion. “Thus, the fact that the TCCB has volunteered Ms. Allmon to provide testimony on behalf of defendant in this case weighs heavily against shielding plaintiffs form discovery of information relevant to her testimony.”

The plaintiffs are represented by attorneys from the Center for Reproductive Rights, The Lawyering Project, Morrison and Foerster, and Austin-based attorneys Jan Soifer and Patrick O’Connell.

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