Trump-Appointed Judge Cites Wildlife Cases As a Reason to Ban Abortion Pills

Doctors love to look at their "unborn patients" much like people like to view animals, argued James Ho, and they suffer an "aesthetic injury" from abortions.

By Susan Rinkunas | August 17, 2023 | 2:34pm

Abortion Politics

Trump-Appointed Judge Cites Wildlife Cases As a Reason to Ban Abortion Pills

On Wednesday, the Fifth Circuit Court of Appeals said it would restrict access to the main abortion pill, mifepristone, allowing its use only through seven weeks of pregnancy (down from the current 10) and banning telemedicine prescriptions of it. (None of the proposed changes will take effect until the Supreme Court weighs in on the case.)

But Fifth Circuit Judge James Ho—who was sworn in by Justice Clarence Thomas in GOP megadonor Harlan Crow’s library in 2018—wanted his colleagues go even further. He would have fully reversed the Food and Drug Administration approval of the abortion pill, and he used some uh, wild, reasons to support his argument. Ho wrote in his unhinged concurrence that the plaintiffs, a group of anti-abortion doctors, have standing in the case because they like looking at babies, and the FDA’s approval of the abortion pill deprives them of that right. He cites “aesthetic injury” precedent from past cases involving federal decisions that threatened wildlife and plants:

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It’s well established that, if a plaintiff has “concrete plans” to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. …

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

Ho cites cases including Sierra Club v. Morton from 1972 and Lujan v. Defenders of Wildlife from 1992 and others in which courts granted standing for various parties to sue, like when a government agency allowed more hunting “depleting the supply of animals . . . that . . . [plaintiffs] seek to view,” or an agency authorized the use of pesticides that would harm “beetles and butterflies that plaintiffs intended to view,” or permitting for development that would “diminish the wildlife population visible to [birdwatchers].’”

It’s….pretty close to comparing women and pregnant people to wild animals! And he kept going!

The Supreme Court has recognized that “the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.” Lujan, 504 U.S. at 566. Every circuit, including our own, has concluded that, when a federal agency authorizes third parties to harm flora or fauna that a plaintiff intends to view or study, that satisfies all of the requirements for Article III standing. …

In all of these cases, a federal agency approved some action—such as developing land or using pesticides—that threatens to destroy the animal or plant life that plaintiffs wish to enjoy. This injury is redressable by a court order holding unlawful and setting aside the agency approval.

And so too here. The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest. And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug.

I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.

This whole flora/fauna line of reasoning gets even creepier when you read this sentence from Ho: “Pregnancy is not a bad or unhealthy condition of the body—it’s a natural consequence of a healthy and functioning reproductive system.” It really sounds like, to him, that women are nothing more than broodmares whose function is to gestate and bring joy to others gazing at them in their habitat.

Judge Ho is an established troll. He notoriously asked during a May hearing, “Is pregnancy a serious illness? When we celebrated Mother’s Day, were we celebrating illness?” But it’s still scary to think what the Supreme Court will do with his writings in the case when they finally weigh in—right in the middle of the 2024 election. It’s also scary to think that Ho, who was on Donald Trump’s Supreme Court shortlist, could get nominated to the high court if Trump wins the presidency in 2024.