“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.
Other paths for SCOTUS
Glitzenstein called it telling that the majority on the 5th Circuit panel — Judges Jennifer Walker Elrod and Cory Wilson, who were also appointed by Republican presidents — upheld standing for anti-abortion groups without buying into Ho’s comparison of pregnant people to animals decimated by development and pollution.
That leaves room for the Supreme Court to do the same, he said.
“I think the Supreme Court is more likely to look at the traditional standing principles in the majority opinion in this case,” Glitzenstein said.
Those principles include showing that there is “substantial risk” that the challengers, due to their profession, are likely to be required to treat patients with complications from mifepristone, despite the providers’ opposition to abortion care.
Jonathan Wood, vice president of law and policy at the Property and Environment Research Center, said “there’s enough going on” in the abortion pills ruling to allow the Supreme Court to circumvent Ho’s position while still limiting access to the medication.
“Other judges were able to find standing without it,” he said.
At most, Wood said, Ho’s views could find traction with one or two of the high court’s more conservative justices.
“It’s the kind of thing that if the case were to go up, you could imagine a concurrence from the court making a similar argument,” Wood said.
‘Optimism and hope’
Standing has long been a concern for environmentalists.
As the Supreme Court has grown more conservative, some have feared that the justices could erect a high bar for plaintiffs such as green groups and climate activists to show they have the standing to file suits — even while leaving the door open to challenges from big corporations and fossil fuel developers.
“Those of us who do environmental cases are always worried about how far the Supreme Court will go to weaken standing in environmental cases,” said Glitzenstein, “but so far, the court has not done that.”
The fact that lower court judges like Ho are instead invoking those principles to preserve the legal standing of conservative interests “gives me a sense of optimism and hope,” said Glitzenstein.
He cautioned, however, that courts have sometimes applied standing and other legal doctrines unequally, picking and choosing winners and losers based on ideology.
Glitzenstein recalled one Center for Biological Diversity challenge to oil and gas operations in the Gulf of Mexico that the 5th Circuit tossed out on standing grounds.
“Obviously, there seems to be a certain result orientation,” he said, “but putting that to one side, the fact that you have courts that are willing to even invoke these principles is something that should give some hope to environmental advocates.”