The ‘rogue’ Trump-appointed judge with abortion pill’s future in his hands
Matthew Kacsmaryk, a federal judge in Texas appointed by Donald Trump, has a tendency to attract strong language. Every Democratic senator opposed his confirmation in 2019, with Chuck Schumer, the then minority leader, calling him “narrow-minded” and “bigoted”.
“Mr Kacsmaryk has demonstrated a hostility to the LGBTQ [community] bordering on paranoia,” Schumer said.
Only one Republican senator, Susan Collins from Maine, broke party ranks and voted against Kacsmaryk’s appointment for life. She also had harsh words, lamenting that his “extreme statements” on reproductive rights pointed to “an inability to respect precedent and to apply the law fairly and impartially”.
Soon Kacsmaryk, 46, will have the opportunity to prove Collins wrong or – as his many detractors fear – all too right. One of his most consequential decisions since joining the federal bench in the northern district of Texas could be delivered by the end of this month , in a case that has the potential to disrupt the lives and futures of millions of American women.
Alliance for Hippocratic Medicine v US Food and Drug Administration (FDA) is the next frontier in the war against abortion in the US. In it, a set of ideologically driven conservative Christian groups is inviting Kacsmaryk to impose a nationwide injunction that would in effect ban the abortion pill by nullifying the FDA’s medical approval of one of its key elements, mifepristone.
Should Trump’s judge side with the plaintiffs, as many reproductive rights experts suspect he will, the abortion pill ban would apply across the country. Unlike Dobbs, the US supreme court’s ruling last June that eviscerated the constitutional right to an abortion and returned legal control over terminations to individual state legislatures, Kacsmaryk’s injunction would render medication abortions unlawful in every state in the union.
The stakes are high: the abortion pill now accounts for more than half of all pregnancy terminations in the US.
“A decision to ban mifepristone nationwide would be devastating,” said Shaina Goodman, director for reproductive health and rights at the National Partnership for Women & Families. “This is a very deliberate, coordinated strategy by the anti-abortion movement to attack abortion every which way they can, and they’ve found in Kacsmaryk a judge who has a track record of making decisions based not on law or evidence, but on partisan ideology.”
Partisan ideology certainly stands out in Kacsmaryk’s background. Before being plucked out by Trump for the federal bench, he worked as deputy general counsel at the First Liberty Institute, a Christian law firm based in Plano, Texas, which opposes the separation of church and state and propagates anti-LGBTQ legal theories.
In his early writings he developed a colourful way of describing the “sexual revolution” of the 1960s and 70s. Samesex relationships were “disordered” and “contrary to natural law”, he opined,
basing his claims on the Catholic catechism.
In 2015, he gave a grotesque caricature of the values of the LGBTQ community. He claimed that a person is seen through the LGBTQ lens as “an autonomous blog of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults”.
Since becoming a federal judge, Kacsmaryk has issued some of the most divisive and contentious decisions in federal jurisprudence. He made his mark by putting a spanner in the works of the Biden administration’s immigration policy – not once, but twice.
In August 2021, he ruled that the Department of Homeland Security had to permanently reinstate the widely criticised “Remain in Mexico” policy which forced thousands of asylum seekers to stay south of the MexicoUS border while their claims were processed. After the supreme court found last June that the US president did in fact have authority to end the policy, overturning Kacsmaryk’s decision, he confounded the Biden administration a second time – ordering in December that Remain in Mexico must be kept in place while lower courts complete their deliberations.
Having shaken up the US government’s approach to immigration, he then turned his spotlight on culture war issues. In October, he struck down as unlawful new guidelines from the Biden administration that protected transgender people from discrimination in the workplace.
His ruling, which delighted farright Republicans in Texas and dismayed LGBTQ advocates, was perhaps unsurprising given Kacsmaryk’s earlier characterization of transgender people as suffering from a “mental disorder”.
Two months after wreaking havoc over transgender protections, Kacsmaryk opened a new front in the battle over reproductive rights: birth control. His opinion in Deanda v Becerra requires all under-18s in Texas to seek approval from their parent or guardian before obtaining contraception from federally funded clinics.
Last month, Kacsmaryk stuck his oar into another area of fervent ideological disagreement: vaccinations. He agreed to hear a case in which an array of anti-vaxxers and conspiracy theorists are suing four of the world’s leading media organisations, including the BBC and Associated Press, for refusing to carry misinformation about vaccines that could put people’s lives at risk.
Taken together, Kacsmaryk has amassed an extraordinary litany of contentious rulings in less than four years. For Stephen Vladeck, a professor of constitutional law at the University of Texas at Austin, the judge’s rapid emergence as a central figure in legal battles across so many different fault lines in American public life is anything but coincidental.
“That’s by design,” Vladeck told the Guardian. “It’s no coincidence that Judge Kacsmaryk has on his docket a higher concentration of hot-button divisive social policy cases than any other judge in the country – people are seeking him out.”
Vladeck explained that conservative plaintiffs deciding where to lodge high-profile cases have 94 federal district courts to choose from. Yet so often they select Amarillo, Texas.
Probe a bit deeper and it becomes clear why this particular court is so popular among extreme, rightwing litigants. Last September, the rules of the court were amended so as to require all new civil and criminal cases to be heard by Kacsmaryk – no exceptions.
That means that anyone going judge shopping in Amarillo knows exactly what they are going to get: a Trump-appointed federal judge unafraid to sweep legal precedent aside and replace it with ideological conservative positions.
As Vladeck pointed out, there is an added bonus for any rightwing plaintiff coming to Amarillo: what happens to Kacsmaryk’s cases if they are appealed, as is almost certainly the case given their contentious nature. Texas is covered by the fifth circuit court of appeals, a panel composed of 16 active judges, 12 of whom were appointed by Republicans.
“Part of what makes Kacsmaryk especially attractive to conservative litigants is not just his actions as a trial judge, but also that his cases will end up in the fifth circuit which is by far the most conservative in the country,” Vladeck said.
Which brings us back to the pending decision over the abortion pill. As Rolling Stone has noted, the Alliance of Hippocratic Medicine has a mailing address in Tennessee, almost 1,000 miles away from Amarillo.
Yet the group has lodged its challenge to the FDA’s approval of mifepristone with Kacsmaryk. Had the case been brought in any other jurisdiction, it might have struggled even to get a hearing.
Mifepristone received FDA approval 22 years ago, and in that time has proved itself to be resoundingly safe and effective. In its response to the call for a ban, the FDA cites a study of more than 30,000 American women undergoing pregnancy terminations before nine weeks of gestation which found that the efficacy of the abortion pill was 99.6%.
Despite such an overwhelming scientific scorecard, the conservative plaintiffs claim that a ban would “protect the health, safety and welfare of all Americans by rejecting or limiting the use of dangerous drugs”. The alliance leans heavily on an obscure 1873 provision known as the Comstock Act which on paper bars materials used in abortions from being sent in the mail – though the Department of Justice has shown that federal courts have dismissed such a prohibition for at least a century.
This titanic clash now falls into the hands of a single “rogue federal judge”, as Vox has dubbed Kacsmaryk. “He has an inordinate amount of power to make sweeping, and in this case, devastating impacts on people across the country,” Goodman said.
She added that a contentious Kacsmaryk ruling would fall more heavily on certain people. “Women of colour, low-income families, young people, are always – over and over again – disproportionately harmed by bans on abortion, and a ban on medication abortion would be no exception.”
It’s no coincidence that Kacsmaryk has on his docket a higher concentration of hotbutton social policy cases
Steve Vladeck
the birth of her son. “There’s this weird shit that happens when you become a mum, you unleash or unlock other parts of your superpower,” she said. “You feel like you can take on or do anything. I wanted to take on the challenge. I wanted to do something that would force me to get back on stage.”
In an Apple Music press conference held on Thursday, she also attributed her decision to the importance of representation for Black people, Caribbean culture and her home country of Barbados. “It’s important for me to do this this year,” she said. “It’s important for representation. I want my son to see that.”
Little has been teased of the performance itself. A trailer produced by Apple Music (titled, of course, “Rihanna is Back”) mostly references the hype around her absence and her much-envied style – voices shouting about how long it’s been, sounding like a Twitter chorus, as the singer dons a neon green cape looking typically unbothered and flamboyant. The official press conference provided few additional details, though Rihanna acknowledged that whittling down 17 years of music into a 13-minute set list was “the biggest challenge” and took 39 versions to perfect. As for that set list, the choreography, potential guests, costumes and maybe promotional tie-ins to something new? We’ll have to wait and see.