The Fifth Circuit Court of Appeals permanently blocked an order on Sunday night that would have forced Catholic bishops, due to a bizarre conflict with the infamous Whole Woman’s Health, to hand over internal communications regarding abortion and honoring the remains of aborted babies. Not only is the ruling a win for pro-life advocates everywhere, but the remarks from Judge James C. Ho will make any lover of the First Amendment want to stand up and applaud.
Here’s what happened: In 2016, Whole Woman’s Health, which operates abortion facilities around the country, sued the State of Texas over a law that requires abortion facilities to bury or cremate aborted human remains. (Imagine being that inhumane.) The Texas Catholic Conference of Bishops supported this state law and this made Whole Women’s Health so angry that they served the bishops with a subpoena a few months ago.
The subpoena demanded access to the Catholic bishops’ communications regarding abortion and other topics. The bishops originally complied to a degree, but when Whole Women’s Health wasn’t satisfied and they asked for more, the bishops asked the Fifth Circuit Court of Appeals for protection. Last month the Fifth Circuit gave the Bishops an emergency stay and on Sunday night, the Fifth Circuit issued an opinion overturning the trial court’s order and protecting the bishops’ internal communications from this kind of nonsense.
Judge Ho’s concurrence stated:
The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains. But from the proceedings below, you would think the opposite were true.
Even from a privacy perspective, it’s unclear how or why Whole Woman’s Health thought they should even have been privy to any communications between the bishops regarding their stance on abortion. The brazen attempt of secular organizations to interfere in the religious beliefs — or public stances on topics like abortion due to said religious ideas — is both rude and highly unconstitutional.
It’s refreshing to see the Fifth Circuit come down so hard on Whole Women’s Health and so readily support the authority of the First Amendment.