The privacy and religious freedom of Texas bishops and other religious groups was upheld by the Court of Appeals for the Fifth Circuit in New Orleans, after the bishops’ internal communications were subpoenaed by an abortion group.

In the 2016 case Whole Woman’s Health v. Smith, an abortion group sued the state of Texas, challenging a law that would require abortion facilities to bury or cremate aborted fetal remains.

As of now, remains can be disposed of through incineration or disinfection and then discharged into a landfill, disposed of into sewer systems, or any other “approved alternate treatment process, provided that the process renders the item as unrecognizable, followed by deposition in a sanitary landfill.”  

The Texas Catholic Conference of Bishops (TCCB) voiced their support for the state of Texas and offered free burials for the remains of aborted babies. Whole Woman’s Health responded by subpoenaing the bishops - although they had not been named in the lawsuit - and demanded access to all internal communications regarding abortion, including any theological and doctrinal debates on the issue.

The bishops released more than 4,000 pages of abortion-related communications with outside individuals, but did not turn over private, internal communications between bishops on the matter, and appealed for emergency protection of these communications.  

In June, a three-judge panel of a federal appeals court protected the bishops’ emails and communications, after which Woman’s Health appealed for a full court hearing.

The bishops’ right to protect their internal communications from government interference or opposition groups was again upheld by the Fifth Circuit Court of Appeals in New Orleans yesterday.  

“It turns out that suing the Good Samaritan was a bad idea,” Eric Rassbach, vice president and senior counsel at The Becket Fund for Religious Liberty, said in a statement. Becket has represented the bishops in court.

“The Church should not have been dragged into this lawsuit solely because it offered free burials for babies. We’re glad the full Fifth Circuit recognized that.”

A final decision on the original lawsuit will come from Federal District Judge David Ezra at a yet unspecified date.