Federal judge at center of FDA abortion drug case has history with conservative causes
By Eleanor Klibanoff, The Texas Tribune
“Federal judge at center of FDA abortion drug case has history with conservative causes” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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When anti-abortion groups wanted to challenge the Food and Drug Administration’s approval of an abortion-inducing drug, they didn’t file the lawsuit in Maryland, where the FDA is headquartered, or in any state where the pill is still legally prescribed.
They filed it in Amarillo, a Texas city that didn’t have an abortion clinic even before the state all but banned the procedure.
But Amarillo does have a federal courthouse with, importantly, just one federal judge presiding. U.S. District Judge Matthew Kacsmaryk hears 95% of the cases filed in Amarillo.
Before Kacsmaryk was appointed to the federal bench by President Donald Trump in 2019, he was deputy counsel for the First Liberty Institute, a deeply conservative religious liberty law firm based in Plano.
Under his leadership, First Liberty was involved in several legal fights over reproductive health care, including trying to block the “contraception mandate” which required health insurers to pay for birth control. Kacsmaryk himself has been outspoken in his opposition to LGBTQ rights.
Since Kacsmaryk joined the bench, the Texas attorney general and private litigants have brought their most contentious suits to Amarillo, largely with the desired outcome. He reinstated the Trump-era “Remain in Mexico” policy on behalf of Texas. He struck down efforts from the Biden administration to protect LGBTQ workers and trans youth. And he ruled that a longstanding federal program that gives teens confidential contraception violated state law.
The Alliance for Hippocratic Medicine, the anti-abortion group challenging the FDA’s approval of mifepristone, is based in Tennessee. But the group incorporated an Amarillo outpost in August 2022, records from the Texas Secretary of State’s office show, three months before filing the lawsuit. One of the plaintiffs is a doctor from Dumas, north of Amarillo, who claims he and his patients have been harmed by the FDA’s approval of the medication.
Religious liberty background
Kacsmaryk attended Abilene Christian University and the University of Texas School of Law before working in private practice at Baker Botts and serving as an assistant U.S. attorney in the Northern District.
In 2014, he joined First Liberty Institute as deputy general counsel. First Liberty, formerly the Liberty Institute, is a religious liberty legal group based in Plano. Its attorneys have argued several cases before the U.S. Supreme Court, including one in which the high court found a school district discriminated against a football coach who prayed on the sidelines after a game.
At First Liberty, Kacsmaryk challenged the Affordable Care Act’s requirement that health insurance plans cover birth control and emergency contraception like the morning-after pill. In a lawsuit, First Liberty argued that providing these medications, which they said were abortion-inducing, violated the plaintiff’s sincerely held religious beliefs.
First Liberty settled the suit in 2017 after the Trump administration amended the requirement to exempt those with “conscience-based objections” to providing contraception.
“Our clients have been litigating against the government’s effort to punish business owners and ministry leaders for following their religious beliefs and moral convictions since 2013,” Kacsmaryk said in a statement at the time. “As President Trump recognized … it is time to reaffirm ‘America’s leadership role as a nation that protects religious freedom for everyone.’”
In 2015, when the U.S. Supreme Court was considering whether states must allow and recognize same-sex marriages, Kacsmaryk penned an essay in the National Catholic Register entitled “The Abolition of Man … and Woman.” He argued “sexual revolutionaries” had desecrated marriage by allowing no-fault divorce, decriminalizing adultery and legalizing contraception and abortion.
If the Supreme Court undid the “final pillar of marriage law” — that it be between a man and a woman — it would lead to a “clash of absolutes” between religious faiths that see gender as a binary and LGBTQ communities who believe, in Kacsmaryk’s words, “the human person is more like a pluripotent cell whose sex and sexuality are subject to autonomous self-definition.”
In 2016, Kacsmaryk advised parents who successfully challenged new policies at the Fort Worth Independent School District allowing students to use restrooms and pronouns aligned with their gender identity.
“This is not diversity but displacement, the absolutist imposition of a sexually revolutionized view of the human person without any accommodation for religious dissenters who may have a different view of man and woman, male and female,” Kacsmaryk told The Daily Signal.
Kacsmaryk has volunteered for a number of conservative candidates in Texas, including Gov. Greg Abbott and Sens. Ted Cruz and John Cornyn. He also founded the Fort Worth chapter of The Federalist Society, a conservative legal organization that played an outsized role in choosing judicial nominees during the Trump administration.
Many of Kacsmaryk’s anti-abortion, anti-LGBTQ stances were raised during his judicial nomination process. Major LGBTQ advocacy groups opposed his nomination. U.S. Sen. Jeff Merkley, a Democrat from Oregon, said it was “really hard to imagine anyone who is less qualified to sit on the federal bench.”
“Every American deserves judges on the bench that protect their constitutional rights, not one that will try to rip them away,” Merkley said in 2019.
Kacsmaryk’s former First Liberty colleague, Jeff Mateer, lost his shot at a federal judgeship after his comments calling transgender kids part of “Satan’s plan” came to light.
But Kacsmaryk was confirmed, on a 52-46 vote, and began his lifetime appointment in June 2019. In his Senate hearing, he vowed to be fair.
“As a judge, I’m no longer in the advocate role,” he said. “I’m in the role of reading and applying with all good faith whatever Supreme Court and 5th Circuit precedent is binding.”
Why so many cases end up in Amarillo
It’s not a coincidence that this reliably conservative judge ends up hearing controversial cases brought by right-wing law firms, private litigants and the state of Texas.
It’s very common for lawyers to file in the district that gives them the best chance of victory. But the design of Texas’ federal judiciary makes it easy to “judge shop,” all but guaranteeing a specific judge will hear a case, said Steve Vladeck, a constitutional law professor at the University of Texas at Austin.
Texas has four federal district courts, which are further divided into 27 divisions. Each district court sets its own rules for how cases are divided up, but typically, cases are randomly assigned to judges within each division. Houston, for example, splits cases between seven full-time judges and five senior judges who have reduced case loads. But outside the state’s urban centers, there are fewer judges to share the load.
“For reasons that are not remotely nefarious, and that are entirely historical and geographical, the norm in Texas has long been that, in more remote parts of the state, the divisions are staffed by a single judge,” Vladeck said.
Texas has nine single-judge divisions and 10 divisions with just two judges; the ones staffed entirely by Trump appointees have been busy recently. Of Texas Attorney General Ken Paxton’s 26 challenges to the Biden administration, seven were filed before Kacsmaryk and seven more before U.S. District Judge Drew Tipton, in Victoria, who has a reputation for being conservative on immigration.
Josh Blackman, a professor at South Texas College of Law Houston, said judge shopping is nothing new, citing examples going back to the civil rights movement.
“Lawyers have a duty to file a case in a district that best serves [their] client,” he said. “If Planned Parenthood filed a lawsuit in Judge Kacsmaryk’s court, it’d be malpractice. You choose the forum that favors you best.”
The U.S. Department of Justice has recently tried to block this practice, filing motions to transfer cases out of Kacsmaryk and Tipton’s courtrooms.
“The case does not arise from any event or omission occurring in the Northern District of Texas, much less the Amarillo Division,” the motion before Kacsmaryk reads. “Plaintiffs’ decision to forum shop by filing in the Northern District—and, in particular, in the single judge Amarillo Division, which has no connection whatsoever to this dispute—undermines public confidence in the administration of justice.”
Neither judge is likely to rule to remove cases from their own courtrooms. But these filings may elevate the issue to those who could change the rules, Vladeck said: the chief judges over each district, who could reallocate cases, or Congress, which could institute more uniform rules across the board.
In the meantime, though, the main avenue to challenge rulings from Texas district courts goes through the New Orleans-based 5th U.S. Circuit Court of Appeals, which is known to be similarly conservative. Only a small portion of cases will eventually go on to be heard by the U.S. Supreme Court.
“Texas district courts are losing in the Supreme Court,” Vladeck said. “But by the time that happens, no one has noticed because for two years, they got away with it.”
Disclosure: Planned Parenthood, Texas Secretary of State and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/15/federal-judge-amarillo-abortion-fda/.
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