Word of the week: Aesthetic injury
How is a lab rat like a pregnant woman?
In a remarkable decision last week, a federal appeals judge invoked the language of environmental law to justify a challenge by a group of anti-abortion doctors to the Food and Drug Administration’s decades-old approval of the abortion pill mifepristone. Just as harm to wildlife and public lands can cause human observers to suffer, the judge implied, a nonexistent embryo can hurt an obstetrician.
Because of the loss of income? Nope. Because the doctor isn’t able to see his or her “unborn patients.”
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“Unborn babies are a source of profound joy for those who view them,” wrote Fifth Circuit Judge James Ho, a Trump appointee. ”Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.” (Hat tip to Mike Pope for the link, which goes to a Bloomberg Law article.)
The legal concept of “aesthetic injury” (or aesthetic interest, as it was sometimes been called) comes not from reproductive law but from environmental case law going back to at least 1972, when the Sierra Club sued to block the development of a ski resort. The U.S. Supreme Court rejected the club’s appeal, but Justice William O. Douglas famously dissented, citing the rights of “aesthetic wonders” and writing that “the voice of the inanimate object”—river, valley, alpine meadow, lake—”should not be stilled.”
In the decades that followed, other cases developed “the legally cognizable aesthetic interest in observing animals.” In a 2000 case, a student claimed aesthetic injury arising from inhuman treatments of the rats and mice in her college laboratory. In a 2013 article for the Harvard Law Review, (“Aesthetic Injuries, Animal Rights, and Anthropomorphism”), Jeffrey M. Skopek summarized the arguments, which maintain that “it is only by being transformed into human harms that violations of animal rights are remedied by the courts.” The “injury” isn’t to the wildlife—or the trees or the rivers—but to human sensibilities.
Applying this concept to a human pregnancy requires some mental gymnastics. For starters, with pregnancy there is another sensibility to consider: that of the pregnant woman, who could suffer actual injury while carrying and delivering a child.
Possibly-not-irrelevant footnote: The Above the Law blog reports that Allyson Ho, who is married to Judge James Ho, has accepted speaking fees from Alliance Defending Freedom, the “conservative Christian” advocacy group that was the primary counsel in the mifepristone case.
And here’s your linguistic footnote: We’ve had the noun and adjective aesthetic—imported from German Ästhetisch—only since the second half of the 18th century. It originally meant “relating to perception by the senses,” and took on the sense of “artistic beauty or taste” around 1833. “Aesthetic surgery” (or dentistry) has been around for a surprisingly long time: since 1856, according to the OED.
Read poet Bridget Kriner’s response to the abortion ruling, “On Aesthetic Injury.”
And here’s some actual “Doctor, my eyes!” content for you, from Boston’s Museum of Bad Art (“Art Too Bad to Be Ignored”).