The existence of Mifepristone, commonly referred to as the “abortion pill,” presents a unique challenge to the anti-abortion lobby. Because it is normally used to terminate pregnancies within ten weeks, well before any semblance of “fetal viability” has occurred, and can be used without any medical intervention, the arguments usually employed by those who seek to control pregnant people’s reproductive decisions are far less persuasive. Consequently, forced birthers are themselves obligated to invent new and novel justifications for their position. In doing so, they inevitably reveal more about their true motivations, which are ultimately all about control: specifically, and most obviously, control over women and pregnant people.
On August 16, a three-judge panel for the staunchly right-wing U.S. Circuit Court of Appeals for the Fifth Circuit upheld (in part) the decision of the Trump-appointed Texas District Judge, Matthew Kacsmaryk, who had, at the urging of several anti-choice organizations, unilaterally suspended the Food and Drug Administration’s approval of use of mifepristone (known as the “abortion pill”) by women and others who might become pregnant. The appellate court, in a 2-1 ruling, permitted the drug to remain on the market, but affirmed the restrictions Kacsmaryk previously imposed, including a prohibition on prescribing the drug past seven weeks’ of pregnancy and forbidding the drug’s delivery by mail. Those restrictions, currently on hold due to a prior stay ordered by the Supreme Court, will almost certainly be taken up by that same Supreme Court for hearing and decision next year.
Both Judges in the Circuit Court’s majority were appointed by Republicans: Jennifer Elrod, appointed by George W. Bush, and Cory Wilson, appointed by Donald Trump. However, the third judge, James Ho, also appointed by Trump, dissented in part from the majority’s ruling while concurring with other aspects of its final opinion. In his dissent, Ho made clear he would have upheld Kacsmaryk’s ruling in the the lower court, which would have maintained an absolute ban on the drug mifepristone. In that separate dissent, Ho advanced what may well be the most disturbing rationale yet for prohibiting the right to abortion, as wielded by the the virulent forced birth lobby.
In essence, Ho would hold that Mifepristone, because it terminates pregnancy at such an early stage, would deprive doctors and medical practitioners of the “aesthetic” pleasure of peering into a woman (or pregnant person’s) body.
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As observed by professor Rhonda Garelick of Southern Methodist University, writing for the Los Angeles Times, Ho held that doctors could bring an actionable claim against abortion drugs based on the “aesthetic injury” they impart—to the doctors:
In what seemed a baffling argument, Ho wrote, “Unborn babies are a source of profound joy for those who view them. 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.”
As reported by Laura Clawson for this site, to bolster his bizarre position, Ho cited to multiple environmental law cases in which courts held that tourists or other nature aficionados were permitted to sue government agencies and developers whose actions had deprived them from experiencing the pleasurable “aesthetic” enjoyment of the natural world. For example, Ho argued, “[I]f a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal.”
Leaving aside the crass comparison of women and others who become pregnant to wild (or captive) animals existing solely for the joy of viewing by others, Garelick recognizes in Ho’s opinion an even more sinister aspect about the forced birth movement in general:
To construe abortion as a crime against the privilege of looking inside women is to construe them as objects offered up for the visual consumption, pleasure and, of course, control of others.
This is not a new concept. Psychoanalytic critics use the term “scopophilia” to refer to a presumably male audience’s erotic viewing enjoyment of the prurient presentation of women’s bodies in film or television, for example. Scopophilia objectifies women, turning them into visual surfaces to be looked at, embellished, augmented or reduced, perfected and consumed — in a word, commodified.
As Garelick notes, mifepristone uniquely prevents this type of “commodification” at the outset by forestalling any opportunity for medical practitioners to surveil their female patients. Because the anti-abortion, forced birth movement is—as amply demonstrated by Supreme Court Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade—rooted in theocratic sensibilities about women’s proper, “subordinate” role in society, this is evidently intolerable.
As Garelick sees it, the language and reasoning employed by Ho and others of his ilk is not simply offensive. It’s not only a scramble on the part of the forced birth lobby to justify restricting abortion by any means necessary, but a calculated and intentional repositioning of the abortion argument in response to the existential “threat” afforded by a drug that can terminate a pregnancy before even the watchful eyes of medical practitioners are involved.
Mifepristone in this way offers women a powerful mode of resistance to the kind of compulsory bodily visibility that Ho advocates. Perhaps that’s why the judge chose the seemingly bizarre grounds of “aesthetic injury” to argue against access to the drug. It allows him to reposition abortion in the very realm from which mifepristone effectively frees it: that of prurient visual surveillance.
As has been repeatedly emphasized by pro-choice activists (and confirmed by forced birth proponents), the movement to restrict or dictate the reproductive decisions of women and others who become pregnant did not end with the Dobbs decision. Right-wing Republican judges exactly like James Ho (who was—and presumably still is—on Donald Trump’s shortlist for a Supreme Court nomination) will continue to spin legal arguments out of whole cloth until they achieve their goal of complete control. They will not stop short of that goal until they are defeated.
This is why the 2024 election, and the next, and the one after, are so incredibly important.
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