On December 13, a three-judge panel of the Fifth Circuit unanimously struck down Mississippi’s law banning abortion after 15 weeks. But Trump judge James Ho only concurred in the result in Jackson Women’s Heath v. Dobbs, not in the majority opinion. Although he conceded that the ban is unmistakably unconstitutional under Supreme Court caselaw, he tarred those cases as illegitimate.
He also castigated district court judge Carlton Reeves for not allowing discovery on the issue of fetal pain, even though that would have had no effect on the legal analysis or the outcome under clear Supreme Court precedent. Ho wrote that Reeves should have explored the issue anyway “on a good faith expectation of legal change.” Ho apparently shares the expectation of his fellow far-right conservatives (including Mississippi legislators) that Brett Kavanaugh’s elevation to the Supreme Court will significantly weaken access to abortion care.
Judge Ho also used the concurrence as an opportunity to echo Justice Clarence Thomas’s spring 2019 screed linking abortion health providers to racist supporters of eugenics. Thomas had cited a number of unreliable and inflammatory sources, including an amicus brief authored by now-Judge Sarah Pitlyk that all but accused Planned Parenthood of engaging in eugenics and genocide. Justice Thomas’s concurrence, in turn, echoed a dissent authored a year earlier by Trump circuit court judges Amy Coney Barrett and Michael Brennan.
This is not the first time Judge Ho has written a separate concurrence to make clear his strong belief that the Constitution does not protect the right to abortion. In July 2018, he attacked Roe as illegitimate and even accused a lower court judge who had upheld the Constitution of seeking to “retaliate against people of faith.”