Donald Trump’s most enduring legacy may be his successful efforts to pack the federal judiciary with far-right ideologues who use the pretext of law to impose their conservative policy preferences on the country. Trump’s judicial nominees have varying fixations: Some favor restricting the right to vote; others wish to strike down environmental protections; and many are eager to roll back LGBTQ rights. But the overarching obsession of Trump’s judges remains the same: a fervent desire to overturn Roe v. Wade and allow the government to ban abortion. And on Sunday, one of Trump’s most extreme nominees laid bare his deep-seated hostility toward abortion in a one-page opinion remarkable for both its candor and intemperance.
James Ho, the judge in question, sits on the 5th U.S. Circuit Court of Appeals. He has a staunchly conservative background, serving as Texas solicitor general during the state’s legal campaign against the Obama administration and volunteering for the anti-LGBTQ, anti-abortion First Liberty Institute. Ho has also asserted that the U.S. should “abolish all restrictions on campaign finance.” It was no surprise, then, that in his very first opinion in April, Ho attacked the city of Austin’s limits on candidate contributions. In a strikingly cynical rant, he suggested that wealthy people must buy off politicians in order to protect themselves from “regulators.”
But this polemic pales next to to Ho’s latest judicial harangue, which places Roe v. Wadesquarely in his crosshairs. The case involves a Texas law that requires the cremation or burial of “fetal remains,” which Whole Woman’s Health challenged in court. In January, U.S. District Judge David Alan Ezra blocked the latest iteration of Texas’ fetal burial rule, ruling that it likely imposed an “undue burden” on a woman’s right to abortion access. Under current precedent, that is a sensible decision; after all, the requirement creates no benefit for women, while passing on substantial costs to patients and clinics.
Texas, however, argues that the fetal burial rule will not saddle clinics with extra costs, because the Texas Conference of Catholic Bishops has offered to bury fetal remains for free, or at reduced cost. To determine the veracity of this offer, Whole Woman’s Health served a subpoena on the conference requesting documents relating to fetal burial. The conference provided many documents but refused to turn over about 300 internal communications, alleging a First Amendment right to keep them secret. A magistrate judge rejected this First Amendment claim, so the conference appealed to Ezra. At noon on Sunday, June 17, Ezra rejected the appeal and gave the conference 24 hours to fully comply with the subpoena.
At that point, a three-judge panel for the 5th Circuit stepped in, granting an emergency motion to stay Ezra’s order. And in a rare Sunday opinion, the panel released its 2–1 decisionessentially directing Ezra to rule in favor of the conference and quash the subpoena. Writing for the majority, Judge Edith Jones held that the subpoena was overbroad and posed a grave threat to the conference’s First Amendment rights to free exercise of religion and free association. (As Slate contributor Steve Vladeck has noted, Jones had to twist the law to hear the case in the first place, as disputes over privilege are not immediately appealable.) She also accused Whole Woman’s Health of “intimidation” for daring to demand the conference’s communications. And she accused Ezra of “religious insensitivity,” if not worse, for ruling against the conference “on a Sunday morning” when its members “were almost surely in church.”
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