Judge in fetal burial trial defends actions
A federal trial over the future of a Texas law requiring that fetal remains be buried or cremated got off to an unusual start Monday when the judge defended himself from a federal appeals court that had questioned his motives in the case.
The dispute involved a side issue over a subpoena compelling the Texas Conference of Catholic Bishops to disclose more than 1,000 pages of emails and other communication detailing its support for the 2017 law and efforts to provide free burial services to reduce the law’s impact.
The bishops appealed, and in a rare Sunday opinion, the 5th U.S. Circuit Court of Appeals quashed the subpoena in a 2-1 ruling that took issue not only with enforcement of the subpoena — which was sought by abortion providers to aid in cross-examination — but also the rapid pretrial schedule adopted
by the trial judge, Senior U.S. District Judge David Ezra, to produce those emails.
In particular, the opinion’s author, Judge Edith Jones, admonished Ezra for supporting a subpoena effort that she said appeared to be an attempt by abortion providers to intimidate the bishops from providing trial testimony in support of the law.
Judge Jim Ho, recently nominated to the appeals court by President Donald Trump, went further in a concurring opinion that called the lower court’s order to turn over the documents “troubling” and an apparent attempt to “retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it.”
Judge biased?
Ezra began the trial in the Austin federal courthouse by saying that he had worked out the rapid pretrial schedule with lawyers from both sides in an attempt to accommodate the state of Texas, which has been blocked from enforcing a law that was to take effect Feb. 1 while the matter is litigated.
“It had nothing to do with some sort of effort to rush this case to trial to disadvantage the bishops. The lawyers know that. I’m just sorry the majority opinion didn’t know that,” Ezra told the courtroom.
Ezra stressed that he brought no bias or preconceived notions about the law’s constitutionality to the case, saying he would make his decision based on information submitted by lawyers during the five days set aside for the trial.
But the judge also said he gave lawyers for Texas Attorney General Ken Paxton an opportunity to seek his recusal from the case for perceived bias hinted at by the two appeals court judges. They declined, he said.
Ezra also said he was going to “absolutely ignore” statements that Jones and Ho included in their opinions that appeared to support the fetal burial law, saying their statements strayed into considering the merits of the case instead of focusing solely on the side issue of the subpoena.
Following the apparent suggestions on how to rule “would be a disgraceful thing for me to do,” Ezra said, raising particular concerns about Ho’s concurring opinion without specifying what he found objectionable.
In his opinion, Ho — a former solicitor general in the Texas attorney general’s office — said the lower-court ruling to enforce the subpoena strayed from the original understanding of the U.S. Constitution.
“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,” Ho wrote.
“By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains,” Ho added. “But from the proceedings below, you would think the opposite were true.”
Writing in dissent, Judge Gregg Costa — appointed by former President Barack Obama — accused Jones of taking “potshots” at Ezra and Magistrate Judge Andrew Austin, who initially approved the subpoena. He also said Ho was “piling on” by calling into question something he could only guess at: their motives in supporting the subpoena.
Costa also noted that the majority acknowledged that they had not looked at the withheld communications to determine whether First Amendment concerns were valid, while Ezra and Austin had before determining that “the emails ... have no religious focus, do not discuss church doctrine or governance, and are more or less routine discussions of the burial services at issue here.”
Opening statements
Monday’s trial began with both sides laying out the arguments they plan to develop over the five days of trial, followed by the first witnesses called by abortion providers who are challenging the fetal burial law, which requires health centers to ensure that the tissue is buried or cremated, with the ashes properly scattered, after an abortion or a miscarriage-related procedure.
David Brown, a lawyer for the abortion providers, told Ezra that the Texas law would create a burden for pregnant women by disregarding their personal beliefs and replacing them with the state’s view that fetal tissue must be treated as a person.
“Providers will testify that many patients do not share the state’s view,” Brown said, adding that for them, forced burial of fetal remains would be an “act of unprecedented intrusion.”
In addition to adding requirements that would make it more difficult to meet patients’ needs, the law would put abortion clinics in danger of closing because there are a limited number of vendors willing and able to handle fetal tissue as required, Brown said.
Darren McCarty with the attorney general’s office said current law allows fetal remains to be incinerated and disposed of in a landfill or ground up and discharged into a sewage system.
“The law is expressly for the purpose of granting the dignified disposition of fetal remains; it is nothing more. It is not an attempt to burden women’s access to abortion or anything like that,” he said.
McCarty also said abortion providers had not diligently researched the availability of vendors capable of meeting the law.
‘The law ... is not an attempt to burden women’s access to abortion or anything like that.’ Darren McCarty Attorney general’s office