5th Circuit: Subpoena To Catholic Bishops Should Have Been Quashed

In Whole Woman's Health v. Smith, (5th Cir., July 15, 2018), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order directed at the Texas Conference of Catholic Bishops.  The discovery order came in a case in which several health care providers are challenging the state's fetal remains regulations which they contend burdens women's right to abortion. The majority opinion said in part:

The [district] court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here....

[T]he claim of religious organizations to maintain their internal organizational autonomy intact from ordinary discovery should be at least as secure as the protection constitutionally afforded other associations. Supreme Court decisions have protected religious organizations’ internal deliberations and decision-making in numerous ways.... Although none have spoken directly to discovery orders in litigation, the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law.

The majority however, pointing to the rule of constitutional avoidance, decided the case on the basis of Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden.

Judge Ho also filed a brief concurring opinion.  Judge Costa filed a dissenting opinion.  Becket issued a press release announcing the court's decision.