Trump judge's actual argument for abortion bans: Doctors are harmed without cute sonograms

Judge James Ho argues women must be forced into pregnancy so others can "cheer at the sight of an unborn child"

By Amanda Marcotte

Senior Writer

Published August 18, 2023 6:00AM (EDT)

Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit and a picture of a sonogram. (Getty Images / The Washington Post )
Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit and a picture of a sonogram. (Getty Images / The Washington Post )

Watch out, Justice Samuel Alito! You've got real competition when it comes to federal judges whose judicial opinions sound more like unhinged posts from an incel forum than legal writings from a professional adult.

Judge James Ho, a Donald Trump appointee who sits on the Fifth Circuit Court of Appeals, is quickly building a name for himself as the biggest crybaby troll on the federal bench. In and out of court, the man is so whiny and obsessed with unjustified grievances, that one expects any day now for him to be outed as "ElliotRodgerFan48" on some low-rent message board. Ho is the judge who argued that, because they didn't take away guns from convicted wife-beaters in the 19th century, the government has no right to do it now. He's the judge who swore he would never hire a Yale graduate because Yale students, using their right to free speech, protested a leader of a hate group. He sneeringly argued that pregnancy cannot ever be a serious medical condition, questioning, "When we celebrated Mother's Day, were we celebrating illness?" He was sworn in by Justice Clarence Thomas at the home of billionaire Harlan Crow, but Ho routinely paints himself as the victim of "elites" like, uh, college students and everyday women who need abortion access. 

As James LaRock at Balls and Strikes writes, "Ho often confuses being a federal judge with being a speechwriter for a right-wing shock jock's presidential campaign." But even by the sub-Steven Crowder standards of Ho's cringeworthy career, he bests himself his opinion in a recent case on whether the courts can unilaterally throw out FDA approval of mifepristone, which is part of a two-pill regimen to terminate early term pregnancies.

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Ostensibly, the fight is over whether the drug is "dangerous," but even those arguing that point can barely be bothered to pretend to believe it. Abortion pills have been legal since 2000 and have been used over 5 million times. As the American College of Obstetricians and Gynecologists writes, "serious side effects occur in less than 1% of patients, and major adverse events—significant infection, blood loss, or hospitalization—occur in less than 0.3% of patients. The risk of death is almost non-existent."

So instead, Ho decided to argue that women need to be forced into unwanted pregnancies so there are more adorable sonogram pictures to gaze upon. No, I'm not exaggerating. 

"Unborn babies are a source of profound joy for those who view them," he wrote in his Wednesday opinion. "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."

The obvious flaw in this argument is that people seeking abortion clearly don't feel stoked about having a baby. But such a point requires believing women are complex human beings with rich interior lives, an idea that anti-choicers are not willing to concede. Instead, the anti-choice movement has long held that all women wish to be pregnant all the time. Any woman who disagrees is immediately written off as too corrupted by feminist propaganda to know her own mind. The solution, according to anti-choicers, is simple: Just force her to have the baby, and she'll soon see it was what she always wanted. 

But Ho isn't just being a sexist pig with this argument. This argument is just as much about exercising a grievance against environmentalists as it is about painting women as empty-headed baby vessels. 

As is typical with grievance-mongering from MAGA types, trying to figure out what they're mad about is a headache. But I'll try to explain. Ho is bitter that groups like the Sierra Club have, in the past, sued to stop development on ecologically valuable lands by arguing that the public has an interest in preserving nature. Basically, if a corporation wants to bulldoze the habitat of some endangered bird, environmentalists will get bird-watchers to join the lawsuit, arguing they will lose out if the birds are killed off. Ho thinks this is stupid. To the right, making a quick buck will always trump supposedly petty interests like preserving nature. So he's shotgunning his loathing of tree-hugging hippies into this abortion debate. 

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Yep, it's the "liberals want to save the whales but not the babies" gambit. It's dumb in a high school debate club and certainly unworthy of the federal bench. It's irrational on its face, of course. Abortion has been legal for five decades and people did not stop having babies. It's also profoundly misogynist, as it equates a woman's body to a natural resource available for public consumption. He's literally saying that since other people would like to use a woman's body to produce sonogram pictures, she has no say over what happens to it. That's quite a rape-y mentality, of course, but no surprise from the "let wife-beaters keep their guns" guy appointed by President Grab 'Em By The Pussy. 

The legal fate of abortion pills is still distressingly up in the air. Because the Supreme Court forced them, two of the three-judge panel reluctantly agreed that they couldn't revoke the FDA's 2000 decision legalizing the pill. But they did strike down subsequent FDA rulings that made the pill easier to get. This is justified because the plaintiffs, a small group of Christian right doctors, don't like it when other doctors perform abortions. As one of the doctors who sued argued, "When my patients have chemical abortions, I lose the opportunity . . . to care for the woman and child through pregnancy." 

Yes, the court is ruling that at least some women must be forced into unwanted pregnancy because this small group of doctors wants more patients. 

Notably, this is a fringe group. The mainstream of American medicine does not believe that women should be forced into childbirth so they can make more money, er, see more cute sonograms. On the contrary, the American Medical Association argues that doctors should prioritize the wellbeing of patients over their own desire for cash and/or ultrasound photos. "Evidence shows patients are at least 14 times more likely to die of complications during childbirth than during any abortion procedure," they explain in their brief defending legal abortion pills. "And substantial evidence shows that denying abortion care puts patients at an increased risk for violence from intimate partners and it exacerbates patients' economic hardships."

Common sense if you believe women are people. But Ho obviously does not. Instead, he openly compares a woman's body to a public park. Usually, right wingers go to some effort to conceal that they view women as resource extraction sites. But this is a new era of court corruption, where conservative justices are bought off with millions of dollars of vacations and other goodies. So why not take that level of impunity into the decisions themselves, which are increasingly indistinguishable from the self-pitying rants from misogynist forums?

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

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Abortion Pill Commentary Fifth Circuit Court James Ho