Los Angeles Times

Abortion case judge seen as conservati­ve ally

Right-wing plaintiffs are seeking out Trump appointee, critics say.

- By Lindsay Whitehurst and Alanna Durkin Richer Whitehurst and Richer write for the Associated Press.

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 Trump and confirmed in 2019 despite opposition from Democrats over his history of 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 Wednesday, days after he took the unusual step of telling attorneys during a status conference to not 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 appointed to the federal bench under Trump as part of a movement by the Republican president and allied senators to shift the federal 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 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 misoprosto­l 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 affect a matter of law. He pledged to “faithfully apply all Supreme Court precedent.”

“As a judicial nominee, I don’t serve 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, he 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, Kacsmaryk ordered that the policy be reinstated in response to a lawsuit filed by the states of Texas and Missouri. The Supreme Court overruled him and said the Biden administra­tion could end the policy, which it did August last year. But in December, Kacsmaryk ruled that the administra­tion failed to follow federal guidelines when terminatin­g the practice, an issue 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 healthcare 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,” he said.

Detractors said the judge’s 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 vs. 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 millenniao­ld 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.”

Sen. Susan Collins (RMaine) 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 Assn., 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.

 ?? Senate Judiciary Committee ?? JUDGE Matthew Kacsmaryk, a former attorney for a Christian legal group, has opposed LGBTQ rights.
Senate Judiciary Committee JUDGE Matthew Kacsmaryk, a former attorney for a Christian legal group, has opposed LGBTQ rights.

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