Last month, the US Court of Appeals for the Fifth Circuit released a decision that partially vacated a previous (and awful) decision by Judge Matthew Kaczmaryk that had effectively overturned the FDA’s approval of abortion drug mifepristone. The three-judge panel in the Fifth Circuit did, however, affirm the lower court decision that severely restricted the use of mifepristone.
But what we’re really here to talk about is an absolutely unnerving solo opinion by a Trump-appointed judge on the panel that shows how some on the Far Right view the rights and bodies of pregnant people. Judge James Ho wrote a concurring opinion that basically compares people’s bodies to tourism opportunities that exist for other people’s aesthetic pleasure.
To explain exactly what happened in this case and provide context for how Judge Ho’s opinion fits into the far-right narrative on reproductive rights—and to keep me from getting too heated while talking about it all—we’ve brought in People For Senior Counsel Elliot Mincberg and Right Wing Watch Managing Director Peter Montgomery. Thanks for helping out!
To Start, Elliot, Who is Judge James Ho and What Makes Him So Concerning?
Sometimes dubbed the “worst Trump judge in America,” James Ho was a Federalist Society member, worked with the notorious John Yoo in the Bush Justice Department, clerked for Justice Clarence Thomas, and was Solicitor General of Texas before being nominated by Trump and confirmed by the Republican Senate to the Fifth Circuit in 2017.
Both on and off the bench, Ho has been consistently hostile to reproductive rights, gun safety, women’s rights, LGBTQ+ equality, environmental protection, regulation of money and politics, and more. He is particularly dangerous because he often writes extreme concurring or dissenting opinions that not even other Trump judges join and that try to take the law in a very extremist direction.
What Was in Judge Ho’s Decisions this Time that Was so Shocking?
Ho wrote his own opinion that agreed with the restrictions imposed by the other two judges but would have gone much further. He would have gone along with the lower court and completely overturned the FDA’s approval of the abortion pill in 2000. What is perhaps most shocking, though, is that Ho borrowed a principle called “aesthetic injury” from environmental cases in order to make his point. He claimed that medical providers challenging abortion can claim “aesthetic injury” from the “destruction of unborn life” and their loss of the chance to enjoy admiring such things as sonograms of fetuses in the womb. This is apparently based on the notion that people can claim such injury from the destruction of animal or plant life that they had intended to go see and enjoy, such as those found in national parks. Ho maintained that doctors “delight in working with their unborn patients” and “experience an aesthetic injury when they are aborted.” Critics have called this part of Ho’s opinion “offensive” and “degrading.”
Peter, How Does Judge Ho’s Statement Reflect Far-Right Opinions on Bodily Autonomy and Reproductive Rights?
Judge Ho’s disrespect for women and bodily autonomy is, like right-wing extremist Judge Matthew Kacsmaryk’s order to ban access to medicine approved by the FDA more than 20 years ago, a brutal example of the authoritarian religious right’s determination to use the power it has built to criminalize abortion in every form in every state.
The case used by right-wing judges to issue the ban on mail and telemedicine access to abortion medication was brought by religious-right legal giant Alliance Defending Freedom. ADF also wrote the Mississippi abortion ban law with the explicit intention of using it to get the right-wing SCOTUS majority cemented by Trump and Senate Republicans to overturn Roe v. Wade, which they saw as a key step toward a national abortion ban. ADF celebrated its victory but does not appear to have commented publicly on Ho’s offensive and degrading opinion.
How Have Others on the Far Right Reacted to this Decision?
Liberty Counsel, another intensely anti-choice and anti-LGBTQ religious-right legal group, praised the Fifth Circuit ruling, calling it a “great decision.” The anti-choice Family Research Council—whose activist conference is being attended by Republican presidential candidates and members of Congress—thanked God for the “victory,” while adding, “we know the fight for life is far from over.”
Indeed, for anti-choice forces, the fight will not be over until abortion is illegal everywhere in the United States. As People For the American Way President Svante Myrick noted after the Republican presidential debate in August, the candidates made it clear that no state is safe from abortion bans:
If some activists have their way, there will be no safe havens to travel to. Princeton Law Professor Robert George filed a brief in the Dobbs case urging the Supreme Court to declare that fertilized eggs were protected from the moment of conception under the 14th Amendment. Under that interpretation, he wrote, states would be required to treat abortion as homicide.
If you don’t think that can happen, and you can’t imagine a national abortion ban becoming law, just remember how unthinkable it once seemed that Trump would become president, or that the Supreme Court would eliminate a constitutional right recognized in law for 50 years.
On access to abortion, legal equality for LGBTQ Americans, the freedom to learn and even a commitment to democracy, the 2024 elections will be a choice between freedom and right-wing authoritarianism that is celebrated by the MAGA movement and the Republican politicians who support it out of conviction or cowardice.
After the Fifth Circuit opinion, The Lever reported:
James Ho did not recuse himself from the case even though his wife, Allyson Ho, has regularly participated in events with and accepted speaking fees from the Alliance Defending Freedom, the conservative Christian legal group whose lawyers argued the mifepristone case before his court, according to the judge’s financial disclosures….
James Ho’s financial disclosures show that Allyson Ho, a top appellate lawyer at the multinational law firm Gibson Dunn, participated in events with the Alliance Defending Freedom and accepted honoraria, or speaking fees, every year between 2018 and 2021. The group also paid her travel expenses for some of the events.
Judge Ho is an extremist who was nominated by Trump in 2017. After his confirmation by the Republican-majority Senate, Ho was sworn in by Supreme Court Justice Clarence Thomas in the private library of Harlan Crow, the Texas billionaire who has lavished financial favors on Thomas.
Thanks, Elliot and Peter!
Opinions like Judge Ho’s paint a disturbing portrait of where the Far Right wants to take this country. It’s up to all of us to push back against authoritarianism and stand up for our democracy and our rights.
Help us in our mission to defend democracy by becoming a member of People For today. Together we can stop the slide toward authoritarianism and help confirm fair-minded judges who believe in bodily autonomy.