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Judges Feuding Over Texas Fetal Burial Case

By William Vogeler, Esq. on July 17, 2018 | Last updated on March 21, 2019

Trial judges and appeals courts have disagreements all the time. Of course, the appellate court almost always wins.

On occasion, a trial court will be vindicated by a superseding opinion from a court of last resort. Once in a Texas moon, however, trial judges and appellate judges will feud till the cows come home.

That's what's happening in a federal circuit right now in Whole Woman's Health v. Smith. This time, the Fifth Circuit Court of Appeals started it.

Fetal Burial

In one sense, Judge David Ezra threw the first punch when he enjoined a Texas law that would require healthcare providers to bury or cremate fetal remains. If that weren't controversial enough, he also ordered Catholic bishops -- who are not parties in the case but offered free burial services for the fetal remains -- to produce email and other documents within 24 hours.

Judge James Ho, reviewing the order, wondered why Ezra did that -- "if not in an effort to either evade appellate review -- or tax the Bishops and their counsel for seeking review." Ho also questioned whether the discovery was sought "to retaliate against people of faith for not only believing on the sanctity of life -- but also for wanting to do something about it."

Whatever it was, it was enough to reverse the order and send the case back for trial. Ezra, in an "extraordinary" statement, said he would ignore the Fifth Circuit opinions.

When the case goes back up -- most likely -- Ezra will have at least one judge on his side. Judge Greg Costa wrote in a dissent that the majority took "troubling potshots" at the trial judge.

"Troubling Potshots"

Costa also took a shot of his own at Judge Edith Jones, who wrote the majority opinion and called the discovery order an "act of intimidation."

"While vigorous disagreement about the law is part of the judicial function, there is no need to go beyond the identification of legal error by questioning the motives of our district court brethren," Costa said.

Meanwhile, the trial goes on in the Texas courthouse. Except for the battle on the inside, it should be another normal day outside with protestors waiting for a verdict.

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