Abortion pill order latest contentious ruling by Texas judge
Apr 8, 2023, 7:07 AM
WASHINGTON (AP) — A Texas judge who sparked a legal firestorm with an unprecedented ruling halting approval of the nation’s most common method of abortion is a former attorney for a religious liberty legal group with a long history pushing conservative causes.
U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, on Friday ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval. His ruling, which doesn’t take immediate effect, came practically at the same time that U.S. District Judge Thomas O. Rice, an appointee of former President Barack Obama, essentially ordered the opposite in a different case in Washington. The split likely puts the issue on an accelerated path to the U.S. Supreme Court.
Kacsmaryk, a former federal prosecutor and lawyer for the conservative First Liberty Institute, was confirmed in 2019 over fierce opposition by Democrats over his record opposing LGBTQ rights. He was among more than 230 judges installed to the federal bench under Trump as part of a movement by the Republican president and Senate conservatives to shift the American judiciary to the right.
He’s the sole district court judge in Amarillo — a city in the Texas panhandle — ensuring that all cases filed there land in front of him. And since taking the bench, he has ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.
Interest groups of all kinds have long attempted to file lawsuits before judges they see as friendly to their points of view. But the number of conservative lawsuits filed in Amarillo has spawned accusations of “judge shopping” or that right-wing plaintiffs are seeking out Kacsmaryk because they know they’ll get a sympathetic ear.
“Why are all these cases being brought in Amarillo if the litigants who are bringing them are so confident in the strength of their claims? It’s not because Amarillo is convenient to get to,” said University of Texas law professor Stephen Vladeck. “I think it ought to alarm the judges themselves, that litigants are so transparently and shamelessly funneling cases to their courtroom.”
The Justice Department quickly appealed Kacsmaryk’s decision to the 5th U.S. Circuit Court of Appeals. And for now, the drug that the Food and Drug Administration approved in 2000 appeared to remain immediately available in the wake of the conflicting rulings in Texas and Washington.
Mifepristone blocks the hormone progesterone in the body and is used with the drug misoprostol to end pregnancy within the first 10 weeks. The lawsuit in the Texas case was filed by the Alliance Defending Freedom, which was also involved in the Mississippi case that led to Roe v. Wade being overturned.
Legal experts warned of questionable arguments and factual inaccuracies in the suit for months, but Kacsmaryk essentially agreed with all the plaintiffs’ major points, including their contention the FDA didn’t adequately review mifepristone’s safety. Medical groups, by contrast, point out mifepristone has been used by millions of women over the past 23 years, and complications occur at a lower rate than with other routine procedures like wisdom teeth removal and colonoscopies.
During confirmation hearings before he took the bench, Kacsmaryk told lawmakers it would be “inappropriate” for a judge to allow their religious beliefs to impact a matter of law. He pledged to “faithfully apply all Supreme Court precedent.”
“As a judicial nominee, I don’t serve as as a legislator. I don’t serve as an advocate for counsel. I follow the law as it is written, not as I would have written it,” Kacsmaryk said at the time.
Before the abortion pill case, Kacsmaryk was at the center of a legal fight over Trump’s “Remain in Mexico” policy, which required tens of thousands of migrants seeking asylum to wait in Mexico for hearings in U.S. immigration court.
In 2021, he ordered that the policy be reinstated in response to a lawsuit filed by the states of Texas and Missouri. The U.S. Supreme Court overruled him and said that the Biden administration could end the policy, which it did last August. But in December Kacsmaryk ruled that the administration failed to follow federal rulemaking guidelines when terminating the practice, an issue that the Supreme Court didn’t address.
He has also ruled that allowing minors to obtain free birth control without parental consent at federally funded clinics violated parental rights and Texas law.
In other cases, he has ruled that the Biden administration wrongly interpreted part of the Affordable Care Act as prohibiting health care providers from discriminating against people because of their sexual orientation or gender identity. And he sided with Texas in ruling against Biden administration guidance that said employers can’t block workers from using a bathroom consistent with their gender identity.
In another case — brought by states challenging a Department of Labor rule — the Justice Department recently tried to get the case moved out of his district, writing in a court filing that “there is no apparent reason—other than judge shopping” that explains why the lawsuit was filed in Amarillo. In denying the bid to move the case, Kacsmaryk wrote that the law “does not require the Court to guess as to Plaintiffs’ subjective motivations for choosing” to file there.
Kacsmaryk’s decisions have been “consistent with what a lot of conservatives were hoping for, and a lot of progressives were fearful of,” said Daniel Bennett, an associate professor at John Brown University in Arkansas, who wrote a book on the conservative Christian legal movement. “This is not a judge who’s necessarily going to be riding the fence.”
Kacsmaryk’s detractors said his past writings and legal work revealed extremist views and animus toward gay and transgender people. In articles before being nominated, he wrote critically of the Supreme Court’s Roe v. Wade decision that established a nationwide right to an abortion and the Obergefell decision that legalized same-sex marriage nationally.
In 2015, he slammed an effort to pass federal gender identity and sexual orientation protections, writing that doing so would “give no quarter to Americans who continue to believe and seek to exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman.”
A year later, he signed a letter that quoted another article as describing the “belief that one is trapped in the body of the wrong sex” as a “fixed, irrational belief” that is “appropriately described as a delusion.”
Kacsmaryk’s defenders say he has been unfairly maligned.
Mike Davis, founder of the Article III Project, a conservative judicial advocacy group, said Kacsmaryk has shown no evidence of bias on the bench. He noted that Kacsmaryk was deemed “qualified,” by the American Bar Association, which means he satisfied what the group describes as “very high standards with respect to integrity, professional competence and judicial temperament.”
“These allegations that he’s biased are completely unfounded and they unfairly conflate his legal advocacy with bigotry,” Davis said. “These Democrat politicians are sending a message to Christians and other people of faith that they are not allowed in the public square.”
Before joining the bench, Kacsmaryk worked as an assistant U.S. attorney in Texas and was involved in such cases as the prosecution of Khalid Ali-M Aldawsari, the former Texas Tech University student from Saudi Arabia convicted in a failed bomb plot.
In 2014, Kacsmaryk joined the First Liberty Institute, which calls itself the “largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans.” Kacsmaryk noted during his confirmation process that the group has represented all faiths.
Among the litigants he defended as the institute’s deputy general counsel was an Oregon bakery that refused to provide a cake for a same sex-couple’s wedding.
“Obviously, his decisions have been really disappointing to progressives and left-leaning folks and been very pleasing to those on the right,” Bennett said. “But that’s kind of the nature of our judicial branch right now, especially with these hot-button issues.”
Richer reported from Boston.