This morning, the Supreme Court said it would not hear the case of Whole Woman’s Health vs. TX Catholic Conference, preserving a victory for the anti-abortion Right.
That case is worth revisiting in part because of how disturbing the twists and turns have been.
For all their complaints about “activist judges,” the Religious Right doesn’t actually have a problem with judges who rule on their personal beliefs, as opposed to the law, as long as it supports their side. This case was always about a conservative judge getting away with judicial activism.
Judge James Ho was a former volunteer attorney for the Christian Right group First Liberty Institute. He was then nominated by Donald Trump to sit on the 5th U.S. Circuit Court of Appeals and confirmed by the Senate, 53-43, in a mostly party-line vote.
The case at hand involved a Texas law that required women who have abortions to cremate or bury the “fetal remains.” There was no medical reason for this. Everyone knows it’s just a way to give those women a guilt-trip about their decision.
Last year, U.S. District Judge David Alan Ezra blocked the rule, saying it was “imposing an undue burden on women’s constitutionally protected liberty.” That was true since, beyond the emotional attack, abortion facilities would have to spend money on this “funeral” service (which could prohibit them from offering the procedure) and the higher costs would be passed along to patients, making it tougher for them to obtain the abortion… which is the only reason conservatives passed it because there were no environmental or health justifications.
But wait! Conservatives said money wasn’t an issue here because the Texas Conference of Catholic Bishops had agreed to cover all the burial/cremation costs.
Mark Joseph Stern of Slate explained what happened next:
To determine the veracity of this offer [from the Texas Conference of Catholic Bishops], Whole Woman’s Health served a subpoena on the conference requesting documents relating to fetal burial. The conference provided many documents but refused to turn over about 300 internal communications, alleging a First Amendment right to keep them secret.
So the Catholics were covering the cost for the government… but they wouldn’t share some of the communications they had about this partnership? Weird.
Judge Ezra didn’t buy it either and he told the Catholics to hand over everything within 24 hours of his ruling. The ruling was immediately appealed to the 5th Circuit, which issued an emergency motion in favor of the Catholics.
It was a 2-1 decision. One of the two judges who said the communications could remain secret was James Ho, who wrote a one-page concurrence. And his reasoning had very little to do with the law and everything to do with his personal beliefs. See if you can figure out what his personal views about abortion are…
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.
Those proceedings are chronicled in Judge Jones’s comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review — or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it.
“Moral tragedy” of abortion? The Constitution doesn’t say we can’t force the burial of fetuses? You’re retaliating against religious people? You made the Bishops work on a Sunday?!
It’s all judicial activism, and conservatives were fine with it, because it meant women who wanted abortions in Texas would have to overcome yet another useless hurdle.
Said Stern at Slate:
This passage is truly astonishing. Ho, a newly appointed circuit court judge, has effectively maligned Ezra, a senior district court judge, as an anti-Catholic bigot. He did so because Ezra had the gall to treat the conference like any other party before the court and issue an order on a weekend. Ho’s evidence of religious animosity is nonexistent, his breach of judicial protocol breathtaking. And his potshot at Ezra is all the more egregious in light of his lengthy and impeccable service: The judge, a Reagan appointee, is based in Hawaii, but serving in Texas to ease a judicial shortage in the state at the request of Chief Justice John Roberts.
Now the Supreme Court says it won’t hear this case, which means the earlier ruling will remain in place. The bishops’ conversations regarding this law, along with any arrangements they may have made with the government, will remain a secret. The people who claim they have nothing to hide, but then refuse to share relevant documents with the outside world, will get to keep them hidden.
And if there’s one thing we know about the Catholic Church, it’s that it thrives on secrecy.
(Screenshot via YouTube. Large portions of this article were published earlier)