An extreme right-wing judge and former clerk for Clarence Thomas, James Ho has close ties to anti-abortion and dark money groups.
In August, three judges on the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana and Mississippi) ruled that mifepristone—the most widely used abortifacient, and more commonly known as the abortion pill—could no longer be provided by mail. They imposed a new requirement that the medicine only be administered in the presence of a physician. They also limited the use of this drug to the first seven weeks of pregnancy, even though it is safe to use at least throughout the first 10 weeks.
The ruling did overturn a lower federal court edict from Judge Matthew Kacsmaryk—a Trump-appointed judge who failed to disclose to the U.S. Senate and the American people his recent anti-abortion writings—to revoke the FDA’s 23-year old approval of mifepristone as a safe drug for Americans seeking abortions.
The Fifth Circuit’s restrictions are held until the U.S. Supreme Court weighs in on the case. But abortion-rights supporters are skeptical of the nation’s highest Court, which is still stacked with the same right-wing justices who overturned Roe. In the aftermath of the Dobbs ruling, GOP-controlled states moved immediately to impose restrictive and dangerous abortion bans—creating a dire need for mail-order mifepristone.
Three Republican-nominated judges issued the Fifth Circuit ruling. But one of the judges, James Ho, issued a concurring opinion, arguing the ruling did not go far enough. Ho declared that the FDA’s 2000 approval of mifepristone should be revoked. In order to justify this extreme legal position, he suggested that litigants could claim a novel “aesthetic injury,” an approach found in environmental law.
Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.James Ho, Alliance for Hippocratic Medicine v. FDA
Ho clerked for Clarence Thomas and has been a member of the Leonard Leo-led Federalist Society. The judge has referred to abortion as “the immoral, tragic, and violent taking of innocent human life.” He and his spouse, Allyson Ho, have been running in the same circles as key players in the assault against abortion access in the U.S. for years.
According to Judge Ho’s financial disclosures, Allyson Ho regularly participated in paid speaking engagements for the far-right group Alliance Defending Freedom (ADF)—the dark money group that argued the mifepristone case. (ADF has been designated by the Southern Poverty Law Center as an anti-LGBTQ hate group.)
Despite this financial connection, Ho did not recuse himself from the case. He purportedly “consulted the judiciary’s ethics advisor,” and he claimed Allyson donates the honoraria to “charity,” notwithstanding the conflict of interest rules in Canon 2 of the Code of Conduct for U.S. Judges.
Judge Ho’s bias is not the only issue of relevance here.
Ho maintained his hostility towards regulating money in politics, even after he became a judge.
In 2018, shortly after joining the Fifth Circuit, Ho argued from the bench that campaign finance restrictions are unconstitutional. The rich should have unlimited buying power when it comes to elections, he said, in order to safeguard their own interests. Ho has also suggested taking a page from dark money funded right-wing operative Grover Norquist—that the solution to billionaires manipulating politics for their personal benefit is not finance reform, but instead “shrinking the size of government.”
And in the wake of bombshell reporting about Clarence Thomas’ failure to disclose multiple gifts, trips and property deals with Republican mega-donor Harlan Crow, Ho came to Thomas’ defense soon after.
At a Dallas Federalist Society chapter event, Ho suggested that Thomas was somehow the victim of “hypocritical double standards.” Ho himself was sworn into his job as a federal judge by Thomas at a ceremony held at the private library of Crow’s palatial estate.
To be clear, Clarence Thomas has engaged in an unprecedented pattern of unethical behavior from the bench, which has helped sink the U.S. Supreme Court’s approval ratings to the lowest level ever recorded. Thomas even failed to recuse himself from cases involving the 2020 presidential election results, despite his spouse, longtime right-wing activist Ginni Thomas, strategizing with Trump’s chief of staff Mark Meadows on how to overturn the 2020 presidential election results to keep Trump in power.
Ginni Thomas has been involved in trying to advance a regressive agenda for America for years, alongside anti-abortion zealot Leonard Leo, the architect of the right-wing’s Court capture plot, and with the financial backing of Crow.
During the Senate’s consideration of his nomination, Ho wrote of his affiliation with the right-wing Federalist Society, the recruitment pipeline of Leo’s effort to capture the courts: “I am a proud member of the Federalist Society. I have attended every annual Federalist Society lawyers conference since I graduated from law school in 1999. I also attended the Society’s annual student conference in 1998 and 1999.”
Leonard Leo was the former vice president of the Federalist Society and remains co-leader of its board.
Ho also has ties to Leo through the far-right legal group First Liberty Institute (FLI), which frequently brings cases before the courts. Before being appointed, Ho was a volunteer attorney for FLI, served as lead counsel for plaintiffs opposing campaign finance laws (which included FLI’s president Kelly Shackelford), and co-authored an article with Shackelford.
In 2020, Shackelford boasted about dark money groups’ efforts to influence Trump’s selection of federal judges: “Some of us literally opened a whole operation on judicial nominations and vetting. … We poured millions of dollars into this to make sure the president has good information, he picks the best judges.”
The same year Ho was nominated for the Fifth Circuit, First Liberty Institute paid Leo’s for-profit firm CRC Advisors over $137,000, and another $139,000 the following year.
By writing his own opinion in Alliance for Hippocratic Medicine v. FDA and suggesting there was a different legal precedent litigants could use to make the use of mifepristone illegal, Ho acted like an advocate for groups aligned with his personal, political agenda.
“Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted,” Ho wrote. “Pregnancy is not a bad or unhealthy condition of the body—it’s a natural consequence of a healthy and functioning reproductive system.”
Ho’s opinion completely ignores the very real “bad” and “unhealthy” conditions pregnant people face when forced to carry an unwanted pregnancy—like the deterioration of mental health and long-term negative socioeconomic effects.
There’s also the terrifying prospect of giving birth in a country with one of the highest maternal mortality rates among wealthy nations.
Maternal mortality rates vary from state to state. Mississippi—where the road to overturning Roe began—had the highest rate in the U.S. in 2021. Incidentally, Mississippi has the second largest Black population in the U.S., with Black people experiencing an even greater chance of maternal mortality due to internalized and systemic racism within the field of medicine.
Judge Ho disregards these facts, in favor of the “delight” forced pregnancies would bring to physicians who are not responsible for carrying the pregnancy or raising the child.
Over a year after the Supreme Court stripped millions of Americans of their constitutional reproductive rights, access to the abortion pill is more important than ever.
The mifepristone case is no doubt headed back to the U.S. Supreme Court, where the same justices—handpicked by Leonard Leo to ostensibly eliminate abortion access, and take away many other freedoms)—will ultimately decide the level of access Americans will have to the abortion pill.
True North’s Lisa Graves contributed to this report.
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