U.S. Judge weighing abortion pill is favourite of conservatives

Sarah Bentley, second from left, leads songs at an International Women's Day Sit-In for Abortion Rights in the Texas state Capitol Rotunda, Wednesday, March 8, 2023, in Austin, Texas. A federal judge in Texas overseeing a high-stakes case that could threaten access to medication abortion told lawyers not to publicize upcoming arguments in the lawsuit and that “less advertisement of this hearing is better,” according to a transcript of the meeting released Tuesday, March 14. (Sara Diggins/Austin American-Statesman via AP, File)

WASHINGTON — A Texas judge hearing a case that could throw into jeopardy access to the nation's most common method of abortion is a former attorney for a Christian legal group who critics say is being sought out by conservative litigants because they believe he'll be sympathetic to their causes.

U.S. District Judge Matthew Kacsmaryk, who's considering a lawsuit aimed at putting a nationwide halt to use of the drug mifepristone, was appointed by President Donald Trump and confirmed in 2019 over fierce opposition by Democrats over his history opposing LGBTQ rights. Mifepristone blocks the hormone progesterone in the body and is used with the drug misoprostol to end pregnancy within the first 10 weeks.

Kacsmaryk heard arguments in the case on Wednesday, days after he took the unusual step of telling attorneys during a status conference not to publicize the hearing because the case has prompted death threats and protests and he believed “ less advertisement of this hearing is better.” Kacsmaryk said he would rule “as soon as possible.”

A former federal prosecutor and lawyer for the conservative First Liberty Institute, the judge has ruled against the Biden administration on other issues, including immigration. 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.

Interest groups 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 Kacsmaryk's Amarillo courthouse - where he is assigned all new cases as the sole district court judge - has spawned accusations that right-wing plaintiffs are seeking him out because they know he's likely to side with them.

“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.”

If Kacsmaryk rules against the drug, the Food and Drug Administration - which has approved using mifepristone - is expected to quickly appeal the ruling. Clinics have said they could carry on with using one other drug alone to terminate pregnancies if necessary but that approach is slightly less effective.

During his confirmation hearings, 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 wrote in a recent court filing that “there is no apparent reason-other than judge shopping” that explains why the lawsuit was filed in Amarillo.

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.”

Republican U.S. Sen. Susan Collins of Maine was among those who opposed Kacsmaryk's nomination, citing what she described as an “alarming bias against the rights of LGBTQ Americans and disregard for Supreme Court precedents.”

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.”

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Richer reported from Boston.