Bench Memos

Law & the Courts

Judge James Ho on Judge Carlton Reeves’s ‘Alarming Disrespect’ for Opponents of Abortion

A year ago, I highlighted an opinion by federal district judge Carlton W. Reeves in which he entered a permanent injunction against a Mississippi law that prohibits abortions after 15 weeks of gestation. As I noted, while Reeves’s bottom-line ruling struck me as a straightforward application of the Supreme Court’s existing (but deeply unsound) abortion regime, it was lamentable that Reeves couldn’t refrain from littering his opinion with various injudicious remarks.

On Friday, a Fifth Circuit panel affirmed Reeves’s ruling. In a noteworthy separate opinion concurring in the judgment (beginning on page 17 here), Judge James C. Ho explained why he was “deeply troubled by how the district court [Judge Reeves] handled this case.” Some excerpts (citations simplified):

The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life….

The district court no doubt believes that its opinion faithfully reflects one side of the debate—the side that believes that abortion is a necessary component of a woman’s personal autonomy. But the Supreme Court has made clear that both sides of the debate deserve respect. “Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy.” Planned Parenthood v. Casey (1992). Countless Americans believe in good faith that abortion is “nothing short of an act of violence against innocent human life.” The majority in Casey even acknowledged that “[s]ome of us as individuals find abortion offensive to our most basic principles of morality.”

Instead of respecting all sides, the district court opinion disparages the Mississippi legislation as “pure gaslighting.” It equates a belief in the sanctity of life with sexism, disregarding the millions of women who strongly oppose abortion. And, without a hint of irony, it smears Mississippi legislators by linking House Bill 1510 to the state’s tragic history of race relations, while ignoring abortion’s own checkered racial past.

(See pp. 27-31 for Judge Ho’s elaboration of these points.)

Ho’s opinion also draws on the history of litigation that preceded Brown v. Board of Education to explain why it would be proper for a district court to allow discovery on a state’s interest in preventing abortions that cause gratuitous pain to unborn babies. (See pp. 21-25.)

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