Texas judge in abortion pill lawsuit often rules for conservatives

[April 10, 2023]  By Nate Raymond

(Reuters) - The federal judge who on Friday suspended approval of the abortion pill mifepristone is a former Christian legal activist whose small courthouse in Amarillo, Texas, has become a go-to destination for conservatives challenging Biden administration policies.

U.S. District Judge Matthew Kacsmaryk, an appointee of former Republican President Donald Trump, had a long track record of opposing abortion and LGBTQ rights before the U.S. Senate confirmed him in 2019 to a life-tenured position as a federal judge.

Now on the bench, he has routinely ruled against Democratic causes. Since October alone, Kacsmaryk has blocked an end to Trump's "Remain in Mexico" immigration program and ruled against Biden administration policies designed to protect LGBTQ people from discrimination in the workplace and at doctors' offices.

Kacsmaryk did not respond to a request for comment.

When anti-abortion groups in November filed a lawsuit challenging the U.S. Food and Drug Administration's more than two-decade old approval of the abortion pill mifepristone, they filed in Amarillo, guaranteeing the case would be heard by Kacsmaryk.

Although his ruling on Friday was preliminary and not on the merits of the case, Kacsmaryk indicated he thought the challenge was substantially likely to succeed. He said that the FDA had ignored risks in approving the drug.

His ruling used language common in anti-abortion circles. Mifepristone, he said, is used to "kill unborn humans." He disclaimed the use of the word "fetuses" as "inaccurately describing unborn humans," noting they might be "persons" entitled to equal protection rights. He also described some of the defense arguments as supporting "eugenics."

Josh Blackman, a conservative law professor at South Texas College of Law who knows Kacsmaryk, compared his judicial philosophy to that of two of the U.S. Supreme Court's most conservative justices, Justice Clarence Thomas and Samuel Alito.

"He's not a moderate," Blackman said.

'SHADOWY PENUMBRAS'

Kacsmaryk left a position as a federal prosecutor in 2014 to join the Christian legal group First Liberty Institute, where as its deputy general he fought against LGBTQ anti-discrimination protections, same-sex marriage and abortion rights.

In that role, he called abortion rights supporters "sexual revolutionaries" in a 2015 article that was critical of the 1973 Supreme Court Roe v. Wade decision, which had guaranteed a national right to abortion, until the high court overturned it last year.

Kacsmaryk called Roe v. Wade a ruling in which "seven justices of the Supreme Court found an unwritten 'fundamental right' to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy 'penumbras' of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye."

During his time with the Christian legal group, he helped oppose a federal mandate that employer-provided health insurance cover women's birth control, and fought a Washington state law requiring pharmacists to stock a "representative assortment of drugs" to meet patient needs, including emergency contraception medications.

His nomination to the bench was part of a push during Trump's tenure to tilt the judiciary to the right. Trump got a near-record 234 judicial nominees confirmed, including Kacsmaryk, who like many other Trump appointees belongs to the conservative Federalist Society.

Matthew Kacsmaryk, deputy counsel for the First Liberty Institute, answers questions during his nomination hearing by the U.S. Senate Committee on the Judiciary at the Dirksen Senate Office Building in Washington, U.S. December 13, 2017 in a still image from video. Pool via REUTERS

Facing fierce opposition from LGBTQ groups and Democrats, Kacsmaryk testified before a December 2017 Senate Judiciary Committee that it would be "inappropriate" for judges to allow their religious convictions to influence their rulings.

He won Senate confirmation on a party-line 52–46 vote in 2019, with only one Republican, Senator Susan Collins of Maine, voting against him at the time, citing his "alarming bias" against LGBTQ people.

FAVORED VENUE

Since then, his courthouse has become a favored venue for conservative legal activists and Republican state attorneys general pursuing lawsuits seeking to halt aspects of Democratic President Joe Biden's agenda - often with success.

In October, Kacsmaryk vacated Biden administration guidance requiring employers to allow transgender workers to dress and use bathrooms consistent with their gender identities.

A month later, he ruled the U.S. Department of Health and Human Services under Biden had wrongly interpreted a provision of the Affordable Care Act as barring healthcare providers from discriminating against gay and transgender people.

Kacsmaryk has also ruled for birth control foes, ruling in December that allowing minors to obtain free contraception though the Title X federal program without parental consent was unlawful.

He is currently presiding over a lawsuit filed by the anti-vaccine group Children's Health Defense and others accusing media companies, including Reuters, of violating federal antitrust laws by working with tech companies to censor information about COVID-19. A Reuters spokesperson has denied the allegations.

The fact that conservatives have been able to steer so many cases to Kacsmaryk's courthouse in the 14th largest city in Texas involves an obscure local order that assigns 95% of federal civil cases to him, its lone judge.

The order virtually guarantees litigants suing in Amarillo get Kacsmaryk and not any of the 12 other active judges in the Northern District of Texas, which also covers Dallas, Fort Worth and other cities.

The Biden administration has sought to transfer at least one case away from Kacsmaryk, accusing a group of Republican state attorneys general of "judge shopping" by filing a lawsuit challenging a rule that allows socially conscious investing by employee retirement plans in Amarillo to get Kacsmaryk. The judge rejected the administration's bid to move that case in late March, saying it had provided no evidence that the litigation did not belong in his court or that plaintiffs were attempting to manipulate the process.

While the district's chief judge could order cases be reallocated, he has not. Supporters of the current practice note that it ensures someone living in Amarillo and suing there does not need to drive five-plus hours to Dallas for a court hearing.

Sarah Lipton-Lubet, executive director of the progressive legal advocacy group Take Back the Court said, "conservative litigants know that they can make all sorts of outlandish arguments, because they know that right wing judges, and this judge in particular, are going to be receptive."

(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi, Bill Berkrot and Diane Craft)

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