One of the judges who issued Wednesday’s federal court ruling that could significantly reduce access to medication abortions has close ties to the conservative legal advocacy group that argued the case, according to records we reviewed.
A three-judge panel in the US Fifth Circuit Court of Appeals ruled that regulators have improperly expanded access to mifepristone, the main pill used in more than half of abortions in the United States. The ruling preserves the legality of mifepristone but prohibits sending it through the mail or prescribing it through telehealth appointments.
Judge James Ho, who was nominated in 2017 by President Donald Trump, wrote his own opinion, agreeing with the majority in part but going even further to argue that the Food and Drug Administration’s (FDA’s) approval of mifepristone in 2000 should be invalidated, removing it from the market — as the lower court had concluded.
James Ho did not recuse himself from the case even though his wife, Allyson Ho, has regularly participated in events with and accepted speaking fees from the Alliance Defending Freedom, the conservative Christian legal group whose lawyers argued the mifepristone case before his court, according to the judge’s financial disclosures.
The opinion from James Ho quickly made headlines because he argued that doctors “experience an aesthetic injury” when their patients have abortions, adding: “Unborn babies are a source of profound joy for those who view them.”
Experts say the judge’s participation in the mifepristone case raises the appearance of impropriety, even if he was not technically required to recuse under existing federal ethics laws.
“The bottom line is that any entity that is putting money in your spouse’s bank account raises a potential for impropriety if you sit on one of those cases,” said Gabe Roth, executive director of Fix the Court, a watchdog group that advocates for federal court reform. “The money was put there in the last couple of years, it’s not like that’s easily forgettable.”
James Ho told us in an email: “I consulted the judiciary’s ethics advisor prior to sitting in this case and was advised that there was no basis for recusal. In any event, Allyson’s practice is to donate honoraria to charity.”
In April, Texas federal Judge Matthew Kacsmaryk issued a sweeping ruling overturning the FDA’s approval of mifepristone. The Fifth Circuit decision overturned the lower court’s ruling in part, but upheld the parts that had nullified moves by the FDA to expand access to the drug via mail or telehealth.
The Joe Biden administration will appeal the Fifth Circuit decision, so it will not take effect until the Supreme Court rules on the case or declines to hear it.
James Ho and Kacsmaryk were scheduled to speak together Thursday at an event put on by a Texas chapter of the Federalist Society, the national conservative lawyers network.
Yearly Events and Payments
The case to prohibit the FDA-approved abortion drug was officially brought by a group of doctors called the Alliance for Hippocratic Medicine, but the case has been led and argued by the Alliance Defending Freedom.
The Christian legal group also helped draft the 2018 Mississippi abortion law at the heart of the Supreme Court decision last year that overturned Roe v. Wade and allowed states to ban the procedure. The organization has been designated as an anti-LGBTQ hate group by the Southern Poverty Law Center.
James Ho’s financial disclosures show that Allyson Ho, a top appellate lawyer at the multinational law firm Gibson Dunn, participated in events with the Alliance Defending Freedom and accepted honoraria, or speaking fees, every year between 2018 and 2021. The group also paid her travel expenses for some of the events. (The judge’s 2022 financial disclosure is not yet available.)
Allyson Ho was paid $3,000 in 2020 for an event listed as the “Alliance Defending Freedom Academy,” and received $1,000 for another Alliance Defending Freedom event in 2021, according to the disclosures.
Court filings show Allyson Ho separately worked alongside lawyers from the Alliance Defending Freedom on an unsuccessful petition to the Supreme Court arguing that justices should allow Christian county commissioners to begin hearings by requesting members of the public stand and join them in prayer.
Last fall, James Ho announced that he would not hire law clerks from Yale Law School, in part because students there had yelled at a top official from the Alliance Defending Freedom during an event.
“Yale not only tolerates the cancellation of views — it actively practices it,” he said, according to National Review.
James Ho specifically complained that “Kristen Waggoner of the Alliance Defending Freedom” faced a disturbance “so intense” that police officers at the Yale event “had to call for backup” and “escort the panelists out of the building and into a squad car.”
A few months later, James Ho celebrated news that Yale planned to bring back Waggoner, who’s now president of the Alliance Defending Freedom, for another event.
“I’m going to end on a note of hopefulness,” he said, adding: “I understand that Kristen Waggoner may be coming back as well, to address a topic of her choosing. Hopefully that will go smoothly as well.”
“We Shouldn’t Assume Illicit Motive”
James Ho was not required to recuse himself from the mifepristone case under current ethics laws, experts say.
“I would draw a distinction, when we are talking about organizations like the Alliance Defending Freedom, between an ongoing relationship and an occasional past relationship, which is what we have here,” said Arthur Hellman, a judicial ethics expert and professor at the University of Pittsburgh School of Law.
If Allyson Ho had an official position with the Alliance Defending Freedom, he explained, that would be a more obvious problem.
Roth offered similar analysis, but he said “the fact that these are all recent honoraria” raises questions about appearance of impropriety.
The US code of conduct for federal judges states that judges “must avoid all impropriety and appearance of impropriety,” explaining: “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”
Proposed Senate legislation regarding federal judicial ethics would require recusal in cases in which the judge or their spouse had received income in the past six years from any of the parties involved in the case.
Roth said that the situation with Ho’s wife suggests that the proposed legislation should be amended to explicitly apply to the lawyers for those parties. The Alliance Defending Freedom has acted as the primary counsel in the mifepristone case.
James Ho has vehemently defended Supreme Court justice Clarence Thomas following revelations that he accepted two decades’ worth of undisclosed luxury gifts from GOP megadonor and Texas real estate magnate Harlan Crow, in apparent violation of federal ethics laws.
“Harlan Crow is a respected business leader, a devoted patriot, and a generous philanthropist,” Ho said in an April speech. “In fact, he opened his home to me and my family, so that Justice Thomas could swear me in on my first day on the bench.”
He continued: “Many people genuinely enjoy spending time with — and learning from — interesting people who do interesting work. . . . We shouldn’t assume illicit motive with every justice who accepts a trip.”