A win for religious liberty

Richard A. Sokerka

The Fifth Circuit federal appeals court last week permanently blocked an order that would have forced bishops in Texas to hand over private emails and other communications on abortion.

The court’s decision stemmed from a suit filed by Whole Woman’s Health, an Austin, Texas-based abortion facility chain, which sued the State of Texas in 2016 over a state law that required hospitals and abortion facilities to dispose of aborted human remains by burial or cremation, rather than in a landfill or the sewer, as had been previously allowed.

Even though the bishops were not part of the lawsuit, Whole Women’s Health demanded to see all communications among the bishops regarding abortion, simply because the Church was offering free burials in Catholic cemeteries for the remains of those babies that were aborted.

In a tremendous victory for religious liberty and for the need to respect the remains of babies in the womb who are aborted and give them a proper burial, the court’s decision found that Whole Women’s Health’s demands were well beyond the law.

Amicus briefs supporting the Texas Catholic Conference were filed by the Jewish Coalition for Religious Liberty, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, and the U.S. Conference of Catholic Bishops, among others.

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.” Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit, an appointee of President Trump, wrote, “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.”

Referencing the recent U.S. Supreme Court ruling involving Masterpiece Cakeshop and gay wedding cakes, Ho wondered if the abortion groups sought the documents “to retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it. It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case,” he wrote.

Grateful for the Court’s ruling, Bishop Brendan Cahill of Victoria, Texas, said, “We believe it will protect religious freedom not just for Catholics, but for Americans of all faiths.”

And we are also grateful for judges who see interpreting the text of the Constitution as it is written and as it applies to today’s cases as their sworn duty as they serve on the bench.