Whole Woman’s Health v. Texas Catholic Conference of Bishops

Becket Role:
Counsel
Case Start Date:
December 12, 2016
Deciding Court:
U.S. Court of Appeals for the Fifth Circuit
Original Court:
United States District Court for the Western District of Texas

Case Snapshot

In December 2016, Whole Woman’s Health, a group that runs abortion facilities around the country, sued the State of Texas to challenge a law that requires abortion facilities to bury or cremate aborted human remains rather than send them to a landfill or flush them into the sewer system. After the Texas Catholic Conference of Bishops stood in support of the state, Whole Women’s Health retaliated by serving the Bishops with a subpoena in March 2018, demanding access to decades’ worth of the Bishops’ communications regarding the topic of abortion—including internal communications regarding moral and theological deliberations among the Bishops. The Bishops provided over 4,000 pages of communications with outside individuals but stood their ground when it came to private religious deliberations among the Bishops. When a trial judge ordered the Bishops to hand over their internal communications in June 2018, Becket filed an emergency appeal to the Fifth Circuit Court of Appeals. After first granting the Bishops temporary protection, the Fifth Circuit granted the Bishops permanent protection on July 15, 2018. On August 16, 2018, the en banc Fifth Circuit rejected Whole Woman's Health's petition for rehearing.

Status

The Fifth Circuit ruled in the bishops' favor on July 15, 2018, holding that the bishops should be protected from a “‘Hobson’s choice’ of retreating from the public square or defending [their] position.” On July 30, Whole Woman’s Health asked the full Fifth Circuit to rehear the case. On August 16, 2018, the en banc Fifth Circuit rejected Whole Woman's Health's petition for rehearing.

Case Summary

No good deed goes unpunished

The Catholic Church has long been known for its pro-life stance. In line with these beliefs, Catholic churches in Texas have worked with hospitals and families for many years to provide burial for unborn remains. When the State of Texas passed a law requiring all hospitals and abortion clinics to bury or cremate all unborn remains, the Texas Catholic Conference of Bishops offered support—as an act of ministry, the Bishops publicly offered to donate free space in Catholic cemeteries across the state for this purpose.

In December 2016, Whole Woman’s Health, a group that runs abortion facilities in Texas, sued the State to stop the fetal remains law. Even though the Texas Catholic Conference of Bishops was not part of the lawsuit, in March 2018 Whole Woman’s Health retaliated against the Bishops for publicly supporting the fetal remains law. Whole Woman’s Health served them with a subpoena demanding that the Bishops hand over all communications about abortion. The Bishops handed over more than 4,000 pages of communications, but the Bishops stood their ground when it came to private religious deliberations among the Bishops, refusing to hand them over.

Church theology is not a public affair

Churches should be free to lend tangible support to public initiatives without fear that they will be forced to hand over private, internal communications, especially on matters of doctrine and theology. The Texas Catholic Conference of Bishops had already handed over thousands of communications with outside groups. Handing over their private, internal religious deliberations between the Bishops regarding matters of faith would seriously interfere with the Church’s ability to conduct its ministries – not to mention that handing them over to advocacy groups who believe differently than the Church does on matters like abortion would be damaging.

Despite this, on June 17, 2018, a trial judge ordered the bishops to hand over their internal communications about abortion to Whole Woman’s Health. The bishops appealed to the Fifth Circuit Court of Appeals for emergency protection from the order. On June 18, 2018, the Fifth Circuit suspended the trial court’s order, protecting the bishops until the case could be fully considered. Simultaneous briefs were filed at the Fifth Circuit on June 25, 2018.

Fifth Circuit Court protects bishops from “Hobson’s choice”

On July 15, 2018, the Fifth Circuit granted the bishops permanent protection from the order. The Court found that the bishops’ claims “go to the heart of the constitutional protection of religious belief and practice as well as citizens’ right to advocate sensitive policies in the public square.” The Court also stated that the abortion facilities’ efforts against the bishops “looks like an act of intimidation,” placing the bishops’ conference in a “‘Hobson’s choice’ of retreating from the public square or defending its position.” On July 30, Whole Woman’s Health asked the full Fifth Circuit to rehear the case. On August 16, 2018, the en banc Fifth Circuit rejected Whole Woman’s Health’s petition for rehearing.

In November 2018, Whole Woman’s Health asked the U.S. Supreme Court to reverse the Fifth Circuit’s decision. On January 11, 2019, Becket filed a brief opposing that request.

The Texas Catholic Conference of Bishops is represented by Becket and by Steven Levatino of Levatino | Pace PLLC in Austin, Texas.

Importance to religious liberty

  • Religious communities: Religious communities must be free to operate and minister without government interference, including by keeping internal church communications private, especially when it comes to matters of doctrine and theology.
  • Public square: Churches should be free to support public initiatives that affect their religious beliefs without being forced to forfeit their privacy.