08-19-2023, 06:20 PM
About judge James Ho's innovative legal argument, linking abortion harm to the "aesthetic injury" doctors experience when the lives of their unborn patients are terminated--
Ho Cites Doctor ‘Aesthetic’ Injuries in Abortion Pill Case
https://news.bloomberglaw.com/health-law-and-business/judge-ho-cites-doctor-aesthetic-injuries-in-abortion-pill-case
Federal appeals court Judge James Ho invoked an unusual parallel to injuries claimed by environmentalists and animal lovers to justify why anti-abortion groups could challenge a key abortion drug.
In an opinion dissenting in part from the US Court of Appeals for the Fifth Circuit’s decision to keep mifepristone on the market but with tighter restrictions, Ho argued doctors suffer an “aesthetic injury” when their “unborn patients” are aborted.
The environmental cases he referenced gave people standing to bring challenges to things like construction projects and expanded hunting rights because they would prevent someone from being able to observe animals in the wild or enjoy the outdoors.
“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.
Ho agreed with the majority that the doctors suffer other injuries when they have to treat patients who suffer from medical complications after taking mifepristone, including a violation of their rights of conscience and having to divert time and resources from their medical practices. But he wrote separately to argue that the harms of mifepristone go beyond that.
“Unborn babies are a source of profound joy for those who view them,” he wrote. “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.”. . .
Boston University School of Law professor Aziza Ahmed said that part of Ho’s dissent was “a bit offensive.”
“Even if you want to say there is an unborn child and that child is suffering, two people are suffering in that scenario,” she said.
Ahmed, who’s an expert in health law and reproductive rights and justice, argues Ho’s dissent erases women from that scenario.
“You can read the sentence ‘Unborn babies are a source of joy,’” she said. “What about the women? Where do they go in that sentence?”
Ho, who was nominated to the appeals court by President Donald Trump in 2017, is known for using provocative rhetoric in opinions in cases that center on hot button social issues.
In a 2021 opinion he suggested his colleagues were applying “a woke Constitution” when they dissented from the full court’s refusal to rehear a case challenging an earlier decision to grant qualified immunity to two police officers who had been accused of tasing a man to death.
“Some argue the police should not use force, even in cases involving deadly threats—or that we should defund the police altogether,” Ho wrote. “But that is a policy debate for the political branches, not the judiciary. As judges, we apply our written Constitution, not a woke Constitution.”
Ho, a former clerk to Supreme Court Justice Clarence Thomas, has been equally outspoken off the bench. He threatened to refuse to hire law students at Stanford and Yale as clerks due to how protestors on those campuses treated conservative speakers.
Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role....
“Since Dobbs, I think, the acceptable discourse of how one speaks about the medical regulation of abortion has basically transformed dramatically,” she said. “His use of the word ‘unborn’ child, his centering on the physician experiencing an injury as opposed to the woman experiencing an injury. You can see all the shifts occurring in this dissent.”
Ho Cites Doctor ‘Aesthetic’ Injuries in Abortion Pill Case
https://news.bloomberglaw.com/health-law-and-business/judge-ho-cites-doctor-aesthetic-injuries-in-abortion-pill-case
Federal appeals court Judge James Ho invoked an unusual parallel to injuries claimed by environmentalists and animal lovers to justify why anti-abortion groups could challenge a key abortion drug.
In an opinion dissenting in part from the US Court of Appeals for the Fifth Circuit’s decision to keep mifepristone on the market but with tighter restrictions, Ho argued doctors suffer an “aesthetic injury” when their “unborn patients” are aborted.
The environmental cases he referenced gave people standing to bring challenges to things like construction projects and expanded hunting rights because they would prevent someone from being able to observe animals in the wild or enjoy the outdoors.
“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.
Ho agreed with the majority that the doctors suffer other injuries when they have to treat patients who suffer from medical complications after taking mifepristone, including a violation of their rights of conscience and having to divert time and resources from their medical practices. But he wrote separately to argue that the harms of mifepristone go beyond that.
“Unborn babies are a source of profound joy for those who view them,” he wrote. “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.”. . .
Boston University School of Law professor Aziza Ahmed said that part of Ho’s dissent was “a bit offensive.”
“Even if you want to say there is an unborn child and that child is suffering, two people are suffering in that scenario,” she said.
Ahmed, who’s an expert in health law and reproductive rights and justice, argues Ho’s dissent erases women from that scenario.
“You can read the sentence ‘Unborn babies are a source of joy,’” she said. “What about the women? Where do they go in that sentence?”
Ho, who was nominated to the appeals court by President Donald Trump in 2017, is known for using provocative rhetoric in opinions in cases that center on hot button social issues.
In a 2021 opinion he suggested his colleagues were applying “a woke Constitution” when they dissented from the full court’s refusal to rehear a case challenging an earlier decision to grant qualified immunity to two police officers who had been accused of tasing a man to death.
“Some argue the police should not use force, even in cases involving deadly threats—or that we should defund the police altogether,” Ho wrote. “But that is a policy debate for the political branches, not the judiciary. As judges, we apply our written Constitution, not a woke Constitution.”
Ho, a former clerk to Supreme Court Justice Clarence Thomas, has been equally outspoken off the bench. He threatened to refuse to hire law students at Stanford and Yale as clerks due to how protestors on those campuses treated conservative speakers.
Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role....
“Since Dobbs, I think, the acceptable discourse of how one speaks about the medical regulation of abortion has basically transformed dramatically,” she said. “His use of the word ‘unborn’ child, his centering on the physician experiencing an injury as opposed to the woman experiencing an injury. You can see all the shifts occurring in this dissent.”
![[Image: 4CV0TeR.png]](https://i.imgur.com/4CV0TeR.png)
