Whole Woman's Health v. Smith

896 F.3d 362

WHOLE WOMAN’S HEALTH; Brookside Women’s Medical Center, P.A., doing business as Brookside Women’s Health Center and Austin Women’s Health Center; Lendol L. Davis, M.D.; Alamo City Surgery Center, P.L.L.C., doing business as Alamo Women’s Reproductive Services; Whole Woman’s Health Alliance; Dr. Bhavik Khumar, Plaintiffs-Appellees,

v.Charles SMITH, Executive Commissioner of the Texas Health and Human Services Commission, in his official capacity, Defendant-Appellee,

v.Texas Catholic Conference, Movant-Appellant.

No. 18-50484

United States Court of Appeals, Fifth Circuit.

Filed July 15, 2018

REVISED July 17, 2018

David Patrick Brown, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, 9th Floor, 25 Broadway, New York, NY 10004, Molly Rose Duane, Caroline Marie Sacerdote, Center for Reproductive Rights, U.S. Legal Program, 22nd Floor, 199 Water Street, New York, NY 10038, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., 24th Floor, 250 W. 55th Street, New York, NY 10019-9601, for Plaintiffs-Appellees.

Daniel Howard Blomberg, Joseph Charles Davis, Daniel Ortner, Counsel, Eric C. Rassbach, Diana Verm, Becket Fund for Religious Liberty, Suite 700, 1200 New Hampshire Avenue, N.W., Washington, DC 20036, Steven Charles Levatino, Esq., Andrew Fairles MacRae, Levatino Pace, L.L.P., Building-K, Suite 125, 1101 S. Capital of Texas Highway, Austin, TX 78746, for Movant-Appellant.

Darren Lee McCarty, Esq., David Austin Robert Nimocks, Special Counsel for Civil Litigation, Office of the Attorney General for the State of Texas, 8th Floor, 209 W. 14th Street, Price Daniels Sr. Building, Austin, TX 78701-1614, for Defendant-Appellee.

Before JONES, COSTA, and HO, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This is an emergency appeal from an extraordinary discovery order by the district court to a religious body. The court compelled document production of the group’s internal communications despite its status as a non-litigant and its voluntary furnishing of substantial discovery materials. Because the trial date looms, and with the benefit of full briefing from both parties, we elect to consolidate the Appellant’s motion to stay, along with the Appellees’ motion to dismiss this appeal, with a determination of the merits of the discovery order. We REVERSE the court’s order denying the Appellant’s motion to quash and compelling further document discovery.

BACKGROUND

The Texas Conference of Catholic Bishops ("TCCB") is an unincorporated ecclesiastical association that furthers the religious ministry of the Roman Catholic Bishops and Archbishops in the State of Texas. Catholic Bishops communicate through TCCB to determine how the Catholic Church should address various moral, theological, and social issues, including abortion policy. The Catechism of the Catholic Church teaches that the dignity of all human life demands respect and that abortion is gravely sinful. See Catechism of the Catholic Church §§ 2270-75.

In August 2016, Jennifer Allmon, TCCB’s Executive Director, voluntarily testified in administrative proceedings in favor of amending state regulations regarding the disposal of embryonic and fetal tissue. Proposed by the Texas Department of State Health Services ("DSHS"), the new regulations would prohibit disposing of fetal remains in a landfill or sewer, as had been earlier allowed. See 41 Tex. Reg. 9709-41 (2016). Ms. Allmon’s written and oral testimony communicated the Bishops’ conviction that fetal remains should be disposed of with respect.

Because a primary objection to the new regulations was the increased cost of interment, the Bishops considered facilitating free burials for fetal remains.¹ On December 12, 2016, TCCB announced that it would work with Catholic cemeteries and funeral homes throughout Texas to offer free common burial² services to fetal remains produced as a result of abortions.

In late 2016, the plaintiffs—several Texas health care providers licensed to perform abortions in the state—challenged the fetal remains regulations pursuant to 42 U.S.C. § 1983. The plaintiffs alleged, inter alia , that the costs imposed by the regulations would violate Due Process by burdening the rights of women seeking an abortion. The plaintiffs sought a temporary restraining order and preliminary injunction. The district court granted the temporary restraining order on December 15, 2016 and scheduled a hearing on the preliminary injunction.

The plaintiffs argued, in part, that the fetal remains amendments would "make[ ] the availability of abortion services contingent on the ability and willingness of third-party vendors to bury or scatter the ashes of embryonic or fetal tissue at a non-prohibitive cost. ... These options are prohibitively expensive." In response, the State of Texas cited Ms. Allmon’s testimony as evidence that a "non-profit group is prepared to provide for the burial of fetal tissue from all health-care providers across the state without charge."

Ms. Allmon testified at the preliminary injunction hearing, reiterating the Bishops’ moral views and their commitment to absorb the costs associated with the burial ministry without providing religious rituals associated with the burial unless a parent so requested. She also testified that the Bishops had authority to commit Catholic cemeteries to participate in this program. On January 27, 2017, the district judge granted the preliminary injunction, finding that some terms in the regulations were unconstitutionally vague and that the rules impermissibly burdened abortion access. The State appealed.

While the appeal was pending, the Texas legislature moved to enact a law specifying legitimate methods for disposing of fetal remains. Ms. Allmon again testified on behalf of TCCB in favor of these provisions. As part of a larger abortion-related bill—SB8—these provisions were then signed into law in June 2017, set to take effect on February 1, 2018. See Tex. S.B. 8, 85th Leg., R.S., § 19(d) (2017).

The plaintiffs immediately moved to enjoin the new law. On January 29, 2018, the district court preliminarily enjoined the provisions of SB8 dealing with fetal remains disposal. The district court set a bench trial date for July 16, 2018 and referred discovery matters to a magistrate judge. On March 19, 2018, the parties stipulated that neither party would produce evidence concerning the cost of compliance with the challenged laws," with the plaintiffs affirming that they "waive[d] any argument ... that the monetary cost of compliance with the challenged laws contributes to their alleged unconstitutionality." This stipulation allows the plaintiffs to avoid disclosure of any of their financial information. Ms. Allmon is currently identified as a trial witness on behalf of the state and will testify in her capacity as Executive Director of TCCB.³

On March 21, 2018, the eve of Holy Week for Christians, a period of intense religious devotional activity, the plaintiffs served TCCB with a third-party subpoena. The subpoena requested, in part, (1) "All Documents concerning EFTR [embryonic and fetal tissue remains], miscarriage, or abortion," (2) "All Documents concerning communications between [TCCB] and current or former employees of DSHS, HHSC, the Office of the Governor of Texas, the Office of the Attorney General of Texas, or any member of the Texas Legislature, since January 1, 2016," and (3) "All documents concerning the Act, the Amendments, or this lawsuit." The subpoena had no retrospective time limitation; made no exception for confidential internal or religious communications; and the return date of the subpoena was 9:00 a.m. on the Tuesday following Easter Sunday.

The Bishops filed their first motion to quash the subpoena and for a protective order on that Monday, April 2, 2018. They contended that the subpoena sought irrelevant evidence, that it violated the free exercise, freedom of speech, freedom of assembly, and freedom of petition guarantees of the First Amendment, that it violated the Religious Freedom Restoration Act ("RFRA"), and that it was unduly burdensome under Fed. Rule Civ. Pro. 45(d). The Bishops’ motion was initially denied without prejudice for a failure to meet and confer with the plaintiffs regarding the scope of the subpoena.

Following the denial of TCCB’s motion, counsel for TCCB and the plaintiffs met and conferred regarding the subpoena’s scope. The plaintiffs agreed to limit their request to the following search terms: SB8, SB 8, Fetal, Fetus, Embryonic, Embryo, Abortion, Aborted, Miscarriage, Unborn, and burial ministry. They also limited the documents requested to those sent or received by Ms. Allmon on or after January 1, 2016.

The Bishops maintained objections to these requests, but nevertheless conducted a search, which returned over 6,000 pages of records. The Bishops ultimately turned over to the plaintiffs 4,321 pages of records,⁴ including responsive documents representing communications with third parties such as state officials, Catholic conferences in other states, and Catholic cemeteries participating in the burial ministry.

At a scheduling conference on Friday, June 8, the magistrate judge informed the Bishops that they must file any further motion to quash by 9 a.m. on Monday, June 11, and that the motion would be argued on Wednesday, June 13. Under this tight schedule, the Bishops renewed their objections under the First Amendment, RFRA, and Rule 45(d). At the June 13 hearing, the magistrate judge specified that the parties should limit the focus of their arguments to the free exercise and freedom of association issues.

The plaintiffs explained their need for the remaining documents—namely, the documents’ relevance for cross-examination purposes. The plaintiffs offered to withdraw their subpoena if Ms. Allmon withdrew as a voluntary witness. The Bishops produced a privilege log, identifying the documents—emails to or from Ms. Allmon—that it continued to withhold as privileged. The Bishops contended that the...