Court Rejects Texas AG's Challenge To Catholic Agency Assisting Migrants

 As previously reported, a legal battle has been underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. This week the Attorney General failed in his efforts to close down Annunciation House.  In Annunciation House, Inc. v. Paxton (I), (TX Dist. Ct., July 1, 2024), a Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. The court said in part:

The State’s proposed counterclaim in the nature of quo warranto violates the Texas Religious Freedom Restoration Act by substantially burdening Annunciation House’s free exercise of religion and failing to use the “least restrictive means” of securing compliance with the law.

In Annunciation House, Inc. v. Paxton (II), (TX Dist. Ct., July 1, 2024), the court dismissed the Attorney General's suit against Annunciation House, saying in part:

The record before this Court makes clear that the Texas Attorney General’s use of the request to examine documents from Annunciation House was a pretext to justify its harassment of Annunciation House employees and the persons seeking refuge.

El Paso Times reports on the case.

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Texas Supreme Court Rejects Expansion of Medical Exceptions to Abortion Ban

 In State of Texas v. Zurawski, (TX Sup. Ct., May 31, 2024), the Texas Supreme Court vacated a temporary injunction entered by a state trial court which had broadened the medical exception to Texas' abortion ban. The trial court had relied on the Due Course of Law and Equal Protection clauses of the Texas Constitution. The Supreme Court said in part:

Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent. As our Court recently held, the law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk. A physician who tells a patient, “Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,” and in the same breath states “but the law won’t allow me to provide an abortion in these circumstances” is simply wrong in that legal assessment. 

Given this construction, we conclude that Dr. Karsan has not demonstrated that the part of the Human Life Protection Act that permits life-saving abortion is narrower than the Texas Constitution allows.

Justice Lehrmann filed a concurring opinion. Justice Busby also filed a concurring opinion which Justice Lehrmann joined.

CBS News reported on the decision.

Texas School Sues Over New Title IX Rules on Sex Discrimination

Suit was filed this week in a Texas federal district court challenging the Biden administration's new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity.  The complaint (full text) in Carroll Independent School District v. U.S. Department of Education, (ND TX, filed 5/21/2024), alleges in part:

7.... This bureaucratic fiat prevents Carroll ISD from protecting private spaces like bathrooms, locker rooms, and showers for both girls and boys, opens girls’ sports to males, and infringes on the constitutional rights of students and staff.  

8. The administrative rewrite achieves the exact opposite of Title IX’s goal to promote equal opportunity for women. For fifty years, “sex” has meant the biological binary—differences between male and female. Respecting these biological differences is essential to achieving that goal—and Title IX recognizes as much. But now the Biden administration’s regulations will require schools to ignore sex to promote a person’s subjective “sense” of their gender.  

9. Schools must do so even though it deprives their female students of the equal opportunities in education that Title IX promised.

ADF issued a press release announcing the filing of the lawsuit.

Feds Sue Texas Correctional Authorities for Failing to Accommodate Employee's Religious Head Covering

The Justice Department today filed suit against the Texas Department of Criminal Justice alleging that it violated Title VII by failing to accommodate a clerical employee's religious practice of wearing a head covering pursuant to her Ifa faith. The complaint (full text) in United States v. Texas Department of Criminal Justice, (SD TX, filed 5/3/2024), alleges in part:

34. Though Spears identified her belief in the Ifa faith and her religious practice of wearing a head covering, TDCJ was not satisfied that her religious beliefs were sincere or should be accommodated. 

35. Instead, when Spears turned in her accommodation form, Fisk informed her that TDCJ would further research her religion and its practices. Spears questioned whether it was a normal practice to research religions. Specifically, she asked whether research would be done for more mainstream religions. Fisk indicated that it was not TDCJ’s normal practice.

 36. On October 15, 2019, Fisk conducted an internet search of the Ifa religion and practices and faxed the search results along with Spears’s accommodation request to Terry Bailey for her consideration. 

37. Then, on October 16, 2019, TDCJ further questioned the sincerity of Spears’s faith when Bailey mailed a letter demanding documentation or a statement from a religious institution pointing to the specific Ifa belief or doctrine that supported the necessity of Spears’s head covering. The letter also stated that TDCJ would not take any further action to review Spears’s accommodation request until the additional information was submitted.

The Department of Justice issued a press release announcing the filing of the lawsuit.

5th Circuit Remands Muslim Inmate's RLUIPA and Establishment Clause Claims

 In Lozano v. Collier, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals reversed a portion of the district court's decision and vacated another portion of it in a challenge by a Muslim inmate to practices that allegedly burdened plaintiff's ability to exercise his religion. The court said in part:

In his first RLUIPA claim, Lozano alleges that the [Texas Department of Criminal Justice] Defendants burdened his religious exercise by denying him the opportunity to shower privately with other Muslim inmates for Jumah.  He alleges that the shower conditions—which include inmates who are “naked, cussing, speaking idol talk” and inmates who are “homosexuals and predators”—make it impossible for him to meet his “holy obligation for cleanliness in prayer for Jumah”...   

Lozano’s second RLUIPA claim, alleges that the TDCJ defendants burdened his religious liberty by denying him a private cell to pray..... Lozano alleges... that other inmates in his cell intruded into his prayer space and tried to provoke him to fight them during his attempts to pray....

Lozano’s third RLUIPA claim involves an alleged lack of access to religious programming and instruction, namely, Taleem and Quranic studies. ...

In his § 1983 claim, Lozano contends that the existence of Jewish- and Native-American-designated units, and the absence of a Muslim-designated unit, constitutes a neutrality problem and violates the Establishment Clause.  

Lozano also alleges that the TDCJ’s faith-based dormitories have a curriculum that requires inmates to attend Christian-based classes, despite the faith-based dorms being nominally open to inmates of all religions. ...

... [W]e reverse the district court’s order granting summary judgment on Lozano’s RLUIPA claims... and vacate and remand for further consideration....

The district court held that Lozano failed to demonstrate a genuine issue of material fact on whether the absence of a Muslim-designated unit or dorm violates the Establishment Clause.... We vacate and remand this claim to the district court to reconsider, in a manner consistent with applicable precedent and this opinion....

5th Circuit Denies Further Relief to Native American Church Objecting to Park Modifications

As previously reported, last year a Texas federal district court held that members of the Lipam-Apache Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. Plaintiffs appealed the injunction denials.  In Perez v. City of San Antonio, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals affirmed the district court. Rejecting appellants' claim under the Texas Religious Freedom Restoration Act, the court said in part:

In analyzing Appellants’ contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether the presupposed burden is real and significant....

Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. Appellants’ reverence of the cormorants as sacred genesis creatures from the Sacred Area is not implicated here because the City’s rookery management program does not directly dictate or regulate the cormorants’ nesting habits, migration, or Park visitation. For example, the record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Moreover, the City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere....

The record indicates that various areas of the Park “become nearly unusable for 10 months of the year due to the bird density/habitat.”...

 [T]he City’s tree removal plan is narrowly tailored to achieve the City’s compelling governmental interest of making the Project Area safe for visitors to the Park....

Appellants assert that the City’s plan violates the religious-service protections provision of the Texas Constitution....

Even accepting that the “relatively new provision bars any government action that prohibits or limits religious services,” Appellants do not sufficiently brief the question of whether a compelled “preservation of spiritual ecology” was envisioned in the statute’s definition of a “religious service” protected from state sanctioned prohibitions or limitations.

Judge Higginson dissented in part, contending that the city should have done more to accommodate plaintiffs as to tree removal and anti-nesting matters.

Texas' Claim Against HHS Over Pharmacy Guidance Dismissed As Moot

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, April 5, 2024), a Texas federal district court dismissed as moot a challenge to an HHS Guidance Document for pharmacies. Initially, HHS issued Guidance reminding retail pharmacies of their non-discrimination obligations. The state of Texas and a pharmacy sued contending that the Guidance required Texas pharmacies to dispense abortion-inducing drugs in violation of Texas law and in violation of religious beliefs of plaintiff pharmacy. HHS denied this and moved for dismissal of the complaint. The court disagreed. The court now describes that decision by saying in part:

So based on the suspicion that Defendants were “smurfing” the administration’s policy goal contrary to the Supreme Court’s holding in Dobbs, the Court shot down Defendants’ motion. [See prior posting.]

Three months after the court refused to dismiss the suit, HHS issued a revised Guidance which explicitly provided that the Guidance does not require pharmacies to fill prescriptions for the purpose of abortions. The court went on:

[D]espite the textual changes, which appear crafted specifically to capitulate to Plaintiffs’ claims, Plaintiffs remain unpersuaded....

Plainly put, Plaintiffs’ concern is that anyone—pregnant or not—can walk into a pharmacy with a prescription for methotrexate, which the pharmacy must fill under every circumstance because the prescription was lawfully prescribed for a non-abortion purpose like rheumatoid arthritis. It’s not an unreasonable concern....

From the Court’s perspective, it’s hard to account for the Revised Guidance’s plain text, Defendants’ reasons for issuing the Revised Guidance, and Defendants’ in-person statements, but then still conclude that Plaintiffs will be forced to dispense drugs for abortion purposes. Indeed, it seems the only way the Court could even “reasonably expect” that Plaintiffs’ alleged injury would occur at this point would be for the Court to disregard all of Defendants’ actions as deceptive litigation posturing.  

To be sure, that argument appeals to the Court’s healthy distrust for the fourth branch of government. But there is no evidence that Defendants have tried to enforce these “obligations” against Mayo or any pharmacy in Texas in the almost two years since the  Pharmacy Guidance was issued. ...

Plaintiffs have received everything they asked for; they should take the win. As a result, the issues are now moot and the Court lacks jurisdiction.

ADF issued a press release reacting to the decision.

Texas Man Sentenced To 37 Years in Muslim Hate Crime Murder

A Department of Justice press release reports that yesterday a Texas federal district court sentenced a defendant to 37 years in prison (with credit for time served before sentencing) for a mass shooting at a Dallas car repair business. Thirty-nine year old Anthony Paz Torres had pleaded guilty to five federal hate crime counts. DOJ explains:

 According to court documents, Torres admitted that a few days prior to the shooting, he went to Omar’s Wheels and Tires, made anti-Muslim comments, and pledged that he would come back. When he returned to the business on Dec. 24, 2015, Torres asked customers if they were Muslim. After being escorted back to his vehicle by Omar’s Wheels and Tires employees, Torres discharged his firearm in the direction of multiple employees and customers. Torres admitted that he killed one person and attempted to kill four other people at Omar’s Wheels and Tires because he believed that they were Muslim. 

Appeals Court Upholds Preliminary Injunctions Against Texas Treating Gender-Affirming Care as Child Abuse

In Abbott v. Doe, (TX App., March 29, 2024), a Texas state appellate court upheld a trial court's preliminary injunction against the state's Department of Family and Protective Services and its Commissioner. The preliminary injunction barred these defendants from taking investigative or enforcement action based on the state Attorney General's Opinion, the Governor's letter and Statement by the Department implementing it that deemed many of the procedures used to treat gender dysphoria to be child abuse. (See prior posting.) The court, concluding that the trial court had not abused its discretion in entering the injunction, said in part:

The injuries Appellees allege, and that the injunction redresses, are that the application or threatened application of the allegedly invalid rule announced in the Department Statement interferes with or impairs the Doe Parents’ right to make imminent decisions about their child’s medical care, Mary’s guarantee of equal rights and equality under law, and Appellees’ rights to due process because the rule is unconstitutionally vague.  See Tex. Const. art. I, §§ 3, 3a, 19....

The temporary injunction specifically precludes the Department from taking action against Appellees based on the rule announced in the Department Statement, which references the Governor’s Directive and the Attorney General’s opinion....  The temporary injunction remedies Appellees’ injuries because it temporarily reinstates Department policies and procedures for screening reports and conducting investigations as they existed prior to February 22, 2022....  At that time, the Department would have applied the same policies and standards to a report concerning gender-affirming medical care as to any other case of suspected child abuse....  Before February 22, 2022, the Department had no rule that categorically deemed the provision of gender-affirming medical care presumptively abusive or required investigation and a disposition for every report of gender-affirming medical care without regard to medical necessity....

In Muth v. Voe, (TX App, March 29, 2024), a second case upholding two temporary injunctions issued by a different state trial court, the appellate court said in part:

We hold that at a minimum the Families have established a probable right to relief on their claim that the Department Statement is an invalid rule because it is a rule within the meaning of the APA and it was adopted without following proper rulemaking procedures.  This claim is sufficient to support the trial court’s temporary injunctions.

Reuters reports on the decision.

5th Circuit: Texas Statute Giving Parents Right to Consent to Teens' Contraceptives Is Consistent with Title X

 In Deanda v. Becerra, (5th Cir., March 12, 2024), the U.S. 5th Circuit Court of Appeals held that a Texas statute giving parents the right to consent to their teenagers' receiving contraceptives is consistent with Title X of the federal Public Health Service Act under which clinics are given grants to distribute contraceptives and other family planning services. HHS had given informal guidance to grantees that they could not require parental consent or notify parents before prescribing contraceptives to minors. The court's opinion describes the lawsuit:

In 2020, Alexander Deanda filed a federal lawsuit challenging the Secretary’s administration of the Title X program. He alleged that he is the father of three minor daughters1; that he is raising his daughters according to his Christian beliefs to abstain from pre-marital sex; and that he wants to be informed if any of his children access or try to access contraceptives. He further alleged that Texas law gives him a right to consent before his children obtain contraceptives. See Tex. Fam. Code § 151.001(a)(6); § 102.003(a)(1). Finally, he alleged that the Secretary administers Title X unlawfully by funding grantees who provide contraceptives to minors without notifying parents or obtaining parental consent. Accordingly, Deanda sought declaratory and injunctive relief on behalf of himself and a putative class, claiming that the Title X program violates (and does not preempt) Texas law and that it violates his constitutional right to direct his children’s upbringing as well as his rights under the Religious Freedom Restoration Act (“RFRA”).

The court concluded that Title X and the Texas statute reinforce each other because Title X calls for grantees to encourage family participation to the extent practicable.  The court however reversed the trial court's invalidation of a formal HHS Rule promulgated in 2021 forbidding grantees from notifying parents or requiring parental consent because the Rule was adopted after this lawsuit was filed and was not specifically challenged by the lawsuit. 

Houston Chronicle reports on the decision.

LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act.  The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant. 

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law....  And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Civil Conspiracy Claims Against Religious Organization Survive 1st Amendment Defenses

In re Gothard, (TX App., Feb. 22, 2024), is a mandamus action that is essentially an appeal of a trial court's refusal to dismiss civil conspiracy claims against Institute in Basic Life Principles and its founder, William Gothard. Plaintiffs claimed that ILBP is a cult that "teachers distorted and heretical Christian doctrines" that led to their sexual abuse by their father and brother. The Texas state appellate court rejected Relators', i.e. defendants', First Amendment defenses, saying in part:

Gothard maintains that religious teachings and the publication thereof are constitutionally protected.  IBLP contends the ecclesiastical abstention doctrine bars RPIs’ cause of action. It argues that the “alleged religiously motivated conduct of IBLP is the advocacy and publication of religious beliefs.”  According to Relators, if RPIs’ claim is considered valid, any religious leader who speaks on religious topics and publishes his beliefs could be subject to a civil cause of action if a listener or reader improperly applies those beliefs in sexually abusing another person or committing some other unlawful act. ...

But the First Amendment does not bar all claims against religious bodies.,,,  A court may exercise jurisdiction over a controversy if it can apply neutral principles of law that will not require inquiry into religious doctrine, interference with the free-exercise rights of believers, or meddling in church government....

The relevant question is whether it appears certain that resolution of [plaintiffs']’ claims will require the trial court to address purely ecclesiastical questions.... IBLP represents that its teachings and materials are based on scriptures from the Bible, none of which “advocate sexual abuse or any other form of sexual immorality.”  Accordingly, by its own admission, IBLP’s teachings and materials do not advocate sexual abuse and consequently, the intentional tort of sexual assault that underlies the civil conspiracy claim is not rooted in religious belief.  ....

Because sexual assault is not part of Relators’ belief system, we cannot definitively say, based on the record before us, that this is a situation in which religious beliefs are so intertwined with a tort claim so as to unconstitutionally burden Relators’ rights and embroil the court in an assessment of those religious beliefs.

Texas AG Seeks to Liquidate Catholic Agency Providing Services to Migrants

 A legal battle is underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. On Feb. 7, Paxton demanded that Annunciation House turn over various records within one day. The next day, Annunciation House filed suit in a Texas state trial court seeking a declaratory judgment and temporary restraining order. The complaint (full text- Scroll to Exhibit 6) in Annunciation House, Inc. v. Paxton, (TX Dist. Ct., filed 2/8/2024), in part asks the court to determine:

whether Defendants’ unexplained demand for sensitive information infringes on AHI’s constitutional rights, including religious liberty, association, and equal protection, and the privacy rights of third parties, including their sensitive medical, legal, and personal information.

The same day, the court issued a TRO (full text, scroll to Exhibit 7) temporarily barring the Attorney General's office from enforcing its Request to Examine Annunciation House's records. On Feb. 20, the Attorney General filed a counter claim (full text), seeking, as a sanction for failing to produce the requested documents, to bar Annunciation House from transacting business in Texas and asking for appointment of a receiver to wind up Annunciation House's affairs. In a press release announcing the filling, the Attorney General's office said in part:

Texas Attorney General Ken Paxton has sued Annunciation House, a nongovernmental organization (“NGO”), to revoke their registration to operate in Texas. The Office of the Attorney General (“OAG”) reviewed significant public record information strongly suggesting Annunciation House is engaged in legal violations such as facilitating illegal entry to the United States, alien harboring, human smuggling, and operating a stash house....

The chaos at the southern border has created an environment where NGOs, funded with taxpayer money from the Biden Administration, facilitate astonishing horrors including human smuggling....

In a Feb. 21 press release, Annunciation House responded, saying in part:

The AG has now made explicit that its real goal is not records but to shut down the organization. It has stated that it considers it a crime for a Catholic organization to provide shelter to refugees.

The Attorney General’s illegal, immoral and anti-faith position to shut down Annunciation House is unfounded. Annunciation House has provided hospitality to hundreds of thousands of refugees for over forty-six years. It is a work recognized by the Catholic Church and is listed in the National Catholic Directory. Annunciation House has done this work of accompaniment out of the scriptural and Gospel mandate to welcome the stranger. Annunciation House’s response to the stranger is no different from that of the schools who enroll children of refugees, the clinics and hospitals who care for the needs of refugees, and the churches, synagogues, and mosques who welcome families to join in worship.

Texas Tribune reports on the litigation.

5th Circuit: EMTALA Does Not Require Emergency Abortions

In State of Texas v. Becerra, (5th Cir., Jan. 2, 2024), the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The Department of Health and Human Services' Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act (EMTALA) requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The 5th Circuit said in part:

While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed, ..., the practice of medicine is to be governed by the states. HHS' argument that "any" type of treatment should be provided is outside EMTALA's purview....

 ... EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child....

... EMTALA leaves the balancing of stabilization to doctors, who must comply with state law.... We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations....

Texas Tribune reports on the decision.

Texas Supreme Court Reverses Trial Court Order That Allowed an Abortion

 In In re State of Texas, (TX Sup. Ct., Dec. 11, 2023), the Texas Supreme Court directed a trial court to vacate a temporary restraining order that it issued on Dec. 7. The trial court's order (see prior posting) allowed plaintiff Kate Cox who is carrying a fetus diagnosed with a fatal chromosomal condition to obtain an abortion. The Supreme Court said in part:

In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.... 

A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient....

Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it.

Meanwhile, the Center for Reproductive Rights announced that Ms. Cox has left Texas in order to get health care elsewhere. CNN reports on the Texas Supreme Court's decision.

Texas Court Issues TRO Permitting an Abortion; Texas AG Responds

 A Texas state trial court yesterday issued a Temporary Restraining Order prohibiting the Texas Attorney General and the state Medical Board from enforcing Texas' abortion ban against plaintiff physician and her staff for performing a D&E abortion for plaintiff Kate Cox who is carrying a fetus diagnosed with a chromosomal condition that will result in its death before birth or at most in a few days after birth. The court in Cox v. State of Texas, (TX Dist. Ct., Dec. 7, 2023), said in part:

The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid.... If she is forced to carry this pregnancy to term, she will likely need a third C-section ... [which would] make it less likely that Ms. Cox would be able to carry another child in the future.

Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas' abortion bans and laws permits an abortion in Ms. Cox's circumstances. Dr. Karsan, however, cannot risk liability under Texas's abortion bans and laws for providing Ms. Cox's abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan's medical license, finances and personal liberty.

Responding to the decision, Texas Attorney General Ken Paxton said in a press release:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.... and civil penalties of not less than $100,000 for each violation.... And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens.... Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

He also sent a letter (full text) to three hospitals-- which were not parties to the case-- warning that they may be liable for negligently credentialing the physician and failing to exercise appropriate medical judgment if they permit the abortion to be performed in their facility.  Austin-American Statesman reports on the decision.

UPDATE: On Dec. 8, the Texas Supreme Court administratively stayed the trial court's order while it considers the case on appeal.

Church Sues Challenging Fee for Water Connection

Suit was filed this week in a Texas state trial court by a church challenging a Houston-area utility district's insistence that the church pay a capital recovery fee of $83,780 rather than the actual cost of $24,900 to connect its new office building and auditorium to the district's water system. The district insists that the added fee "prevents taxpayers from bearing the burden of paying taxes on the bonds issued to construct water, sewer, and drainage facilities that also serve the Church." The complaint (full text) in Grace Community Church- The Woodlands, Inc. v. Southern Montgomery County Municipal Utility District, (TX Dist. Ct., filed 11/15/2023), alleges that the fee in excess of the actual cost of the connection amounts to an unlawful tax on a tax-exempt organization.  It also contends that the fee violates the Texas Religious Freedom Restoration Act and the First Amendment's free exercise clause. First Liberty issued a press release announcing the filing of the lawsuit.

Pastor's Breach of Contract Suit Dismissed on Ecclesiastical Abstention Grounds

In Craver v. Faith Lutheran Church, (TX App., Nov. 8, 2023), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a pastor's suit for breach of contract and fraudulent inducement brought against the church that was his former employer. After the church's executive board received complaints against the pastor, the church entered a severance agreement with the pastor. The pastor contends that the agreement included an assurance that the allegations against him would not be spread throughout the congregation. The court said in part:

Craver argues his case presents a “run-of-the mill” civil dispute, which can be resolved by application of neutral principles of law and without reference to religious matters. He contends: “While Faith Lutheran’s decision to terminate [him] is generally unreviewable, [his] claims have nothing to do with that and are instead about Faith Lutheran’s obligations under a secular, civil contract not to make certain statements.”

We disagree that church matters can be so cleanly and completely severed. Instead, the substance and nature of Craver’s fraudulent inducement and breach of contract claims are “inextricably intertwined” with matters of Faith Lutheran’s church governance.... [B]oth claims rely on circumstances surrounding contract formation and it is those circumstances which implicate the ecclesiastical abstention doctrine...

[W]e cannot untwine recommendations Church executives made in the course of church governance from the allegedly fraudulent representations that form the basis of Craver’s lawsuit.

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.