September 12, 2023 | Reading Time: 2 minutes
Welcome to the Uterus, America’s newest national park
A judge borrows from environmental law, writes Lindsay Beyerstein.
Welcome to the Uterus, America’s newest national park, please enjoy your stay and exit through the gift shop. At least, that’s the vision of Judge James Ho of the Fifth US Circuit Court of Appeals.
Ho is part of a three-judge panel that ruled recently to restrict access to long-approved abortion drugs. Ho went even further than his fellow judges, however, arguing that anti-choice doctors could challenge the availability of the drug by arguing that it deprives them of their right to gawk at cute fetus pictures.
“Unborn babies are a source of profound joy for those who view them,” Ho went on. “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.”
Ho is borrowing a concept from environmental law known as “aesthetic injury.” Until now, the concept has been used to safeguard tourists’ right to enjoy pristine wilderness areas, but now a federal judge wants to put women on the same level as plants and animals. Sexism doesn’t get more obvious than that: Women’s bodies exist to gratify bystanders who can sue to preserve the view.
If Ho had his way, anyone who planned to leer at pregnant bellies would have a legal basis to sue to protect his aesthetic supply. There’s no reason why aesthetic rights should be limited to doctors rather than, say, pregnancy fetishists on PornHub.
“It’s well-established that, if 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,” wrote Judge Ho, who argued that because researchers can sue to curb pesticide use, doctors should be able to sue to the FDA approval of an abortion drug 20 years after the fact.
Ho’s argument is even more breathtaking than a daybreak view of the cervix. If Ho had his way, anyone who planned to leer at pregnant bellies would have a legal basis to sue to protect his aesthetic supply. There’s no reason why aesthetic rights should be limited to doctors rather than, say, pregnancy fetishists on PornHub.
Even if the Supreme Court were to uphold such reasoning, it would be a violation of medical ethics for any physician to champion his aesthetic enjoyment over the wellbeing of the patient.
The moral conviction that a physician must never put personal gratification over patient wellbeing is as old as medicine itself. The Hippocratic Oath has largely been superseded by more modern formulations, but the old Greek version contains many principles that still govern medical ethics today. The original oath states that “Whatsoever house I may enter, my visit shall be for the convenience and advantage of the patient.”
In other words, the doctor’s duty is to attend to the wellbeing of the patient not to gratify their own urges, aesthetic or otherwise. This proviso was originally a promise not to have sex with patients, enslaved or free, but the moral imperative of disinterested beneficence has been elaborated and extended to create the principle of patient-centered care that all physicians must strive to uphold today.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.