Tue Sep 17 05:49:20 UTC 2024: ## Fifth Circuit Judge Ho Calls Out Supreme Court for Overlooking Arguments in Abortion Case

**HOUSTON, TX** – In a recent concurring opinion, Fifth Circuit Judge James Ho criticized the Supreme Court for failing to consider all arguments presented in *Alliance for Hippocratic Medicine v. FDA*. The case involved a challenge to a Department of Health and Human Services regulation that required hospitals to provide abortion care in emergency medical situations.

While the Supreme Court ultimately reversed the Fifth Circuit’s decision, Judge Ho argues that this was only because the Solicitor General changed the government’s position on federal conscience laws, which protect doctors’ right to refuse certain medical procedures. He points out that the government had previously taken a different stance on these laws, arguing that they did not exempt doctors from providing abortion care in emergency situations.

Furthermore, Judge Ho criticizes the Court for dismissing a novel standing argument based on “aesthetic injury” – the idea that unborn babies evoke an emotional connection and their abortion causes a form of aesthetic harm. Judge Ho argues this argument, grounded in environmental law precedents, was ignored by the Court, which he believes is a dereliction of duty.

This isn’t the first time Judge Ho has publicly disagreed with the Supreme Court. He argues that lower court judges have a responsibility to identify Supreme Court precedents that have been eroded by more recent decisions, to identify instances where the Supreme Court quietly undermines its own decisions, and to point out when the Court fails to consider all presented arguments.

“Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions,” wrote Judge Ho. “Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments.”

This case highlights the ongoing tension between the Supreme Court and lower courts, and the role of individual judges in holding the Court accountable for its decisions.

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