The federal judge overseeing a high-profile challenge to the FDA’s two-decade-old approval of certain drugs used to terminate a pregnancy is a deeply conservative jurist with a proclivity for siding with plaintiffs looking to roll back reproductive and LGBTQ rights or block key Biden administration policies.
US District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, was confirmed by a 52-46 Senate vote in 2019.
The FDA case, the biggest abortion-related case since the Supreme Court overturned Roe v. Wade last year, has drawn considerable criticism from abortion rights advocates. But Kacsmaryk himself has also drawn scrutiny for the way he’s handled the matter, with critics taking issue with some highly unusual steps he took to delay making the public aware that a hearing was scheduled in the case for Wednesday.
Since Kacsmaryk took the bench in 2019, he’s helped make Texas a legal graveyard for policies of President Joe Biden’s administration, largely due to the fact that Texas’ rules for how federal cases are assigned in the state have allowed conservatives to file there strategically, almost guaranteeing their complaints will be before sympathetic judges. Kacsmaryk is assigned every case filed in his division.
In recent comments to The Washington Post, Kacsmaryk’s sister, Jennifer Griffith, detailed her brother’s long history of being anti-abortion and how she believes fate brought the abortion case before him.
“I feel like he was made for this,” Griffith said. “He is exactly where he needs to be.”
The group that brought the medication abortion lawsuit, the Alliance for Hippocratic Medicine, incorporated in Amarillo a few months before they filed the suit, according to documents from the Texas secretary of state’s office.
Kacsmaryk is the only federal district judge seated in the Amarillo division of the US District of Northern Texas.
An activist judge
Kacsmaryk has been flexing his conservative bona fides long before he became a federal judge, with his record on a range of issues on display while he worked for a prominent legal group representing the religious right.
But in his few short years as a judge, he has emerged as chief antagonist of the Biden administration, including with rulings against the administration’s moves to expand LGBTQ protections, Biden’s immigration agenda and policies that ensure minors’ access to birth control without their parents’ permission.
In December, Kacsmaryk put on hold the Biden administration’s most recent attempt to end the so-called “Remain in Mexico” program. And he has overseen Texas cases challenging vaccine mandates, the gender identity guidance issued by the US Equal Employment Opportunity Commission and the administration’s limits on the use of Covid-19 relief funds for tax cuts.
In the birth control case, he ruled in December that a federal program that allowed minors to receive birth control without their parents’ consent was unlawful, halting the program in Texas.
“Defendants’ administration of the Title X program violates the constitutional right of parents to direct the upbringing of their children and Texas Family Code,” Kacsmaryk wrote. The ruling is now being appealed.
A month earlier, Kacsmaryk blocked the Biden administration from enforcing new rules that sought to protect transgender Americans from discrimination in health care. That ruling is also being appealed by the administration.
Criticism of the judge-shopping tactics by conservative plaintiffs has come directly before Kacsmaryk, including in early February when the Justice Department took aim at the strategy in a dispute he’s overseeing involving a new Labor Department rule.
“Plaintiffs’ and other litigants’ ongoing tactic of filing many of their lawsuits against the federal government in single-judge divisions, or divisions where they are otherwise almost always guaranteed to procure a particular judge, undermines public confidence in the administration of justice,” DOJ wrote in court papers.
One of the attorneys representing the Alliance for Hippocratic Medicine in the FDA case pushed back on allegations from critics that the filing location was chosen strategically to get the case before Kacsmaryk.
“It’s an utterly nonsensical argument to make because we have every right to file a lawsuit where our clients are injured,” Erik Baptist, an attorney with Alliance Defending Freedom, which is representing the abortion pill challengers, told CNN. He pointed to an individual plaintiff in the lawsuit, Dr. Shaun Jester, who practices near Amarillo.
“Congress has authorized the American public to sue federal agencies where the American public has actually been injured and where they reside,” Baptist said. “And that’s exactly what Dr. Jester did here. He filed this lawsuit with the other plaintiffs in this case because he is based in the Amarillo area, and therefore, we filed this lawsuit where he resides.”
Advocating for the religious right
Prior to joining the bench, Kacsmaryk served for several years as deputy general counsel at the First Liberty Institute, a conservative Christian legal advocacy group, where he worked mainly on “religious liberty litigation in federal courts and amicus briefs in the US Supreme Court,” according to a biography issued in 2017 by the Trump White House.
Among the Supreme Court disputes Kacsmaryk weighed in on was the landmark 2015 case that legalized same-sex marriage nationwide. In a brief submitted to the court by Kacsmaryk and others on behalf First Liberty and a host of other religious groups, they urged justices to rule that the First Amendment’s free speech protections “protects religious dissenters who disagree with state recognized same-sex marriage.”
Months after the court issued its decision in the case, Kacsmaryk penned an essay critical of the ruling that also took aim at proposed legislation that sought to enshrine federal protections for LGBTQ Americans.
“The Equality Act seeks to weaponize Obergefell, moving with lightning speed from a contentious five-to-four victory on same-sex marriage to a nationwide rule that ‘sexual orientation’ and ‘gender identity’ are privileged classes that give no quarter to Americans who continue to believe and seek to exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman,” he wrote.
At the time of his confirmation to the court, his then-employer heaped praise on him for being “the first confirmed judge who’s gone directly from a religious liberty law firm to the federal judiciary.”
“Matthew’s confirmation is a major win for religious-freedom practitioners, proving that a principled attorney may zealously advocate for the rights of religious minorities, conscientious objectors, and faith-based ministries without forfeiting the opportunity to serve on the bench,” First Liberty Institute said in a statement.
Kacsmaryk is also a longtime member of the conservative legal group the Federalist Society and has campaigned for Texas GOP Sens. Ted Cruz and John Cornyn, as well as Texas Republican Gov. Greg Abbott, according to answers he submitted to the Senate Judiciary Committee.
CNN’s Tierney Sneed contributed to this report.