Washington — A lawsuit challenging the abortion pill filed by anti-abortion rights advocates in federal court in Texas has put the spotlight on the judge assigned to the case and his record on hot-button issues.
The judge, Matthew Kacsmaryk, was nominated to the U.S. District Court in Amarillo first in 2017 and again in 2019 by former President Donald Trump. He was confirmed by the Senate in a nearly party-line vote, with one Republican, Sen. Susan Collins of Maine, opposing his nomination.
Since taking his seat on the federal bench, Kacsmaryk has presided over a number of cases challenging President Biden’s policies on immigration, LGBTQ rights and abortion access. But it is the court fight over the Food and Drug Administration’s approval in 2000 of the abortion drug, mifepristone, that has renewed scrutiny of his record.
The lawsuit was filed in November by the Alliance Defending Freedom, a conservative legal group, on behalf of physicians and medical associations, which argue the FDA erred in approving mifepristone more than 20 years ago. The groups have asked Kacsmaryk to order the agency to withdraw its approval of the abortion pill, a move that could have broad implications for abortion access nationwide, even in states that protect reproductive rights.
The Biden administration is urging the court to reject the request for a preliminary injunction, telling Kacsmaryk in court filings that the groups waited too long to file their suit, and limiting access to mifepristone would lead to worse health outcomes for patients.
Medication abortions have become more common over the years, accounting for more than half of all abortions in the U.S. in 2020, according to the Centers for Disease Control and Prevention.
Kacsmaryk is the only judge in the Amarillo Division of the Northern District of Texas, and the decision by the medical associations to file their case there has led to accusations they engaged in forum-shopping, a practice in which a party will pursue a claim in the court most likely to be favorable to them.
“The plaintiffs who have no legitimate standing have hand-picked him to hear this case that has no merit because they know what they’re getting with Judge Kacsmaryk,” Sen. Ron Wyden, an Oregon Democrat, said in a Senate floor speech last month.
A message left with Kacsmaryk’s chambers was not immediately returned.
Here’s what you need to know about Kacsmaryk:
His legal background
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Before being confirmed to the District Court, Kacsmaryk worked as deputy general counsel for the First Liberty Institute, a Christian conservative legal organization that has litigated several cases up to the Supreme Court. Kacsmaryk also was a federal prosecutor in Dallas and Fort Worth.
Outside of his professional record, Kacsmaryk was a member of the Board of Trustees for Christian Homes and Family Services, which provides foster and adoption services, according to a questionnaire filed with the Senate Judiciary Committee. Kacsmaryk joined the board in 2016.
He also co-founded the Fort Worth Lawyers Chapter of the Federalist Society in 2012 and served as its vice president and programs director.
Kacsmaryk volunteered for a number of Republican candidates running for federal and state office, including George W. Bush’s 1998 campaign for governor and both presidential runs; Texas Sen. John Cornyn’s 1998 bid for state attorney general and U.S. Senate runs; and Texas Sen. Ted Cruz’s 2012 bid for the Senate and 2016 campaign for president.
His volunteer work for the campaigns consisted of phone banking, helping at rallies and participating in get-out-the-vote drives, according to the committee questionnaire.
Born in Gainesville, Florida, in 1977, he received his undergraduate degree from Abilene Christian University and law degree from the University of Texas.
The cases he has been assigned
Since his confirmation to the bench, Kacsmaryk has been assigned a number of cases challenging Mr. Biden’s policies, many of them brought by Texas Attorney General Ken Paxton and Republican officials.
Most notably, Kacsmaryk ruled against the Biden administration in its efforts to end the Trump-era “Remain in Mexico” policy.
First, in August 2021, Kacsmaryk ordered the administration to reinstate the program, which requires certain migrants to wait in Mexico for their asylum hearings. But the Supreme Court cleared the way for the Department of Homeland Security to end the “Remain in Mexico” policy, and sent the case back to the lower courts to evaluate whether a second attempt by Homeland Security Secretary Alejandro Mayorkas to end the policy complied with federal law.
Kacsmaryk again stopped the Biden administration from ending the program in December 2022, siding with two Republican states challenging the attempted rescission.
Kacsmaryk is also presiding over a challenge from a group of 25 Republican attorneys general to a rule from the Labor Department that allows 401(k) managers to consider climate change and other environmental, social and governance factors when investing their clients’ money.
The Biden administration last month requested the case be transferred from the federal court in Amarillo, arguing that doing so would “avoid any appearance of judge-shopping” by the Republican attorneys general.
“This case is merely the latest example of an ongoing practice of many of the plaintiff states and other litigants of filing most of their lawsuits against the federal government in single-judge divisions or divisions where they are almost always guaranteed to procure a particular judge assignment,” Justice Department lawyers wrote in a filing. “That practice undermines public confidence in the judicial system, rewards gamesmanship, and overworks certain members of the judiciary at the expense of the random-assignment system functioning as intended.”
The states on Tuesday filed an amended complaint that added a plaintiff who resides and owns a business in Amarillo that sponsors a 401(k) plan.
In October, Kacsmaryk sided with the state of Texas in limiting guidance issued by the Equal Employment Opportunity Commission in the wake of the Supreme Court’s 2020 decision finding that federal civil rights law protects LGBTQ workers.
The Biden administration’s guidance said that intentionally using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment, and employers cannot deny an employee access to a bathroom, locker room or shower that corresponds to their gender identity. The guidance also said prohibiting a transgender person from dressing consistent with their gender identity would constitute sex discrimination.
What he has said about abortion
Kacsmaryk doesn’t appear to have addressed the issue of medication abortion specifically in public writings or comments, but in a 2015 article, he characterized the Supreme Court’s 1973 Roe v. Wade decision, which legalized abortion nationwide, as seven justices finding 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.”
As a lawyer with First Liberty, he also participated in legal efforts challenging the Affordable Care Act’s contraceptive mandate, which requires private employers to provide health insurance plans that cover certain contraceptives.
Kacsmaryk attended a meeting at the White House with budget officials in July 2017, during which he delivered a letter urging the Trump administration to “respect the conscience rights for all Americans, religious and non-religious alike,” and expressed support for “broad language” of a draft regulation “protecting objections on the basis of ‘religious beliefs’ or ‘moral convictions,'” he said in response to written questions during his confirmation process when he was first nominated in 2017.
But Kacsmaryk added that “as a District Judge, however, I would not advocate for clients or a particular policy but instead [am] bound by oath to faithfully apply all Supreme Court and Fifth Circuit precedent.”
