politics

The newest federal court ruling on abortion pills is gaining attention for one judge’s unorthodox argument — one that equated anti-abortion activists to wildlife lovers.

Judge James Ho of the 5th U.S. Circuit Court of Appeals, writing separately from his two colleagues on a three-judge panel, borrowed from environmental case law to contend that medical providers challenging abortion care suffer “aesthetic injury from the destruction of unborn life.”

“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,” Ho wrote, citing a long list of environmental opinions from the Supreme Court and other federal appeals courts. “Unborn babies are a source of profound joy for those who view them,” he continued. “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.”

Legal experts say they doubt the Supreme Court — where the Justice Department has said it will bring the high-profile battle over mifepristone pills — would latch on to Ho’s comparison. But they suggested that a Trump-appointed judge on a conservative-dominated court, which is normally hostile to environmental challenges, may have helped build a stronger foundation for green activists seeking to protect treasured landscapes and vulnerable species.

“The first thing that struck me was the irony of the 5th Circuit relying on standing in environmental cases,” said Eric Glitzenstein, director of litigation at the Center for Biological Diversity.

He later added: “It’d be more gratifying to see them do that in environmental cases.”

The 5th Circuit’s ruling Wednesday largely affirmed but also overturned parts of an April ruling by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, who has also drawn attention as a potentially leading threat to the Biden administration’s climate agenda.

Ho wrote that while he disagreed with the 5th Circuit majority’s decision to uphold — with limits — the legality of abortion pills, he agreed with the other judges’ finding that a coalition of Catholic medical providers and other groups had shown that they had legal standing to file their lawsuit.

But he decided to take the argument a step further than the other two judges — penning an opinion that has drawn scathing rebukes on social media for its attitude toward pregnancy care.

Ho compared the Food and Drug Administration’s approval of abortion pills to federal permits for land development or pesticide use that threaten to destroy living creatures. Courts, he said, have repeatedly found that challengers in the latter cases have the basis under Article III of the Constitution to establish the power to file a lawsuit.

“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,” Ho wrote.

The Alliance for Hippocratic Medicine, the lead challenger in the case, did not provide comment before publication time. The FDA does not comment on pending litigation.