And Extremist Judges Like Kacsmaryk Will Hand Down Extremist Rulings
When Trump’s extreme anti-Choice, psychotically homophobic and anti-trans nominee (chosen by his pals at the Federalist Society), Matthew Kacsmaryk, came up for a confirmation vote on June 19, 2019, the only Republican to vote against him was Susan Collins. It didn’t matter and he was confirmed 52-46 (two Dems absent that day). Even if Lisa Murkowski (R-AK), who claims to be pro-choice, had joined Collins to try to stop this guy, it wouldn’t have mattered. (A day earlier, the Democrats’ ritual filibuster had failed— again, just Collins serious about stopping this fanatic.)
People who know him say he’s not just a vicious bigot, but also Trump’s worst nominee to be confirmed, a graduate from a Christian school, not a real college. The first and second times Trump nominated him, he was turned down but he won on the third try— elections, as they say, have consequences— when the GOP had the votes to confirm him.
Kacsmaryk is obsessed with gay people to the point where it has become obvious that he is psychologically damaged, probably gay himself, and severely in need of mental care. He wrote that the sexual revolution “sought public affirmation of the lie that the human person is an autonomous blob 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. In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore… [It] has been typified by lawlessness and just a complete refusal to obey basic rule of law principles… In this century, sexual revolutionaries are litigating and legislating to remove the fourth and final pillar of marriage law: sexual difference and complementarity. The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons or at least deny them ‘full equality.’” Part of his life’s work has been to oppose legislation to add “sexual orientation” and “gender identity” to civil rights protections for Americans and has been outspoken in his opposition to marriage equality.
The other part of his life’s work has been to undermine women’s reproductive rights and he has zero regard for established legal precedent in this area. If you wonder how he’s going to rule, keep in mind that he took a lead role in opposing a Washington state law that required pharmacists to stock a “representative assortment of drugs... in order to meet the pharmaceutical needs of its patients,” including birth control. He wrote an amicus brief condemning the requirement that the pharmacies provide birth control.”
Since getting onto the federal bench, he’s become the go-to judge for extremists shopping for a fanatic judge, In 2021, he ordered the reinstatement of a Trump policy that required asylum seekers to wait outside of the U.S. while their claims were being considered. The Supreme Court overruled him last June. And last year he ruled that the Biden administration misinterpreted the affordable Care Act to enforce the prohibition of discrimination based on sexual orientation and gender identity. Last year he also vacated protections for transgender workers enacted by the Biden administration.
This morning, the Washington Post published a look at Kacsmaryk by Caroline Kitchener and Ann Marimow: The Texas Judge Who Could Take Down The Abortion Pill, in the context of the judge-shopping that has put a ruling on the legality of government approval of mifepristone, a key abortion medication, into his eager hands. Riling against it, wrote the two reporters “could, at least temporarily, halt over half the legal abortions carried out across the country, including in states led by Democrats where abortion rights are protected. While many experts have said the case relies on baseless medical claims, it is Kacsmaryk’s role as presiding judge that has the abortion rights movement bracing for another crippling defeat.”
The abortion pills lawsuit, which Kacsmaryk could rule on any day, is the latest in a long line of politically explosive cases to appear on the judge’s docket. In a practice known as “forum shopping,” conservative groups have zeroed in on the Amarillo division of the Northern District of Texas as a go-to place to challenge a wide range of Biden administration policies. Because Amarillo is a federal district with a single judge, plaintiffs know their arguments will be heard by Kacsmaryk— who, like any federal judge, is positioned to issue rulings with nationwide implications.
Appeals from Kacsmaryk’s district follow a path that has regularly yielded favorable outcomes for conservatives— reviewed first by the 5th Circuit, which upheld a strict Texas abortion ban long before Roe v. Wade was overturned, then ultimately by the conservative-controlled Supreme Court.
…When Kacsmaryk appeared before the Senate in 2017, 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.”
It was obvious he was lying at the time. But that was absolutely fine with the 52 Republicans cantors who voted to confirm him. Kitchener and Marimow wrote that “By the time Kacsmaryk sat for his Senate confirmation hearing in 2017, the Democrats on the Judiciary Committee had learned about many of his socially conservative convictions. One by one, the senators quizzed Kacsmaryk on the commentary and legal briefs he’d signed in recent years. Recognizing same-sex marriage will send the country ‘on a road to potential tyranny.’ The push for ‘so-called marriage equality’ has been a ‘complete abuse of rule of law principles.’”
He has worked on campaigns to elect Ted Cruz, John Cornyn and Greg Abbott and “in 2014 became deputy general counsel for First Liberty Institute, a conservative legal group that has challenged anti-discrimination laws, arguing that companies should not be compelled to make business decisions that go against their religious views.”
One particular area of interest for First Liberty was birth control. Two months before Kacsmaryk’s initial nomination to the bench, he was at the White House for a meeting with Trump administration budget officials, making the case that regulations requiring employers to cover contraception should protect objections “on the basis of ‘religious beliefs’ or ‘moral convictions,’” according to his written responses to the Judiciary Committee.
Friends and former colleagues described a religiosity so strong it comes through in all aspects of Kacsmaryk’s life.
Faith is not a “suit he keeps in his closet and only takes out to go to Church on Sunday,” said Roger Severino, vice president of domestic policy at the Heritage Foundation, a conservative research group, and a friend of Kacsmaryk’s. He prays often, several friends said, and is constantly rereading the Bible.
…The lead plaintiff in the abortion pills case, the Alliance for Hippocratic Medicine, incorporated in Texas— with a “registered agent” in Amarillo— several months before the lawsuit was filed. While the group’s website does not include any location or contact information, records filed with the Texas Secretary of State show that the group’s mailing address is in Tennessee.
Julie Marie Blake, senior counsel at the firm representing the Alliance for Hippocratic Medicine, said the group’s decision to incorporate in Texas predates the abortion pills lawsuit.
“I think they had decided to incorporate in Texas and put everything together quite some time ago,” said Blake, adding that the firm also selected Kacsmaryk’s court because another plaintiff in the case— a doctor— practices in the area.
Brought by four antiabortion medical groups and four doctors, the case aims to undo the U.S. Food and Drug Administration’s 2000 approval of mifepristone, which is used along with another drug, misoprostol, to facilitate a medication abortion. While misoprostol is widely used on its own to perform abortions around the world, studies show it is less effective than the two-step regimen and usually causes more cramping and bleeding.
The FDA has repeatedly deemed the two-step medication abortion protocol to be a safe and effective alternative to surgical abortions. But the conservative group’s lawsuit argues that the FDA chose politics over science when it approved “chemical abortion drugs,” purposely ignoring what the plaintiffs claim are potentially harmful side effects.
“The FDA’s job is to protect the health, safety and welfare of America’s women and girls,” said Blake. “These dangerous drugs should never have been allowed on the market.”
A potential ruling by Kacsmaryk against the FDA could take mifepristone off the market, said Liz Wagner, senior federal policy counsel at the Center for Reproductive Rights.
“It would essentially be a national ban on medication abortion,” she said.
Officials within the Biden administration have taken note of the conservative lawyers flocking to Amarillo. In February, the Justice Department cited alleged forum shopping when it asked Kacsmaryk to transfer a lawsuit against the Labor Department out of his Amarillo court, which the government says has “no connection whatsoever to this dispute.” Such a transfer, the government argued, would “avoid the appearance that plaintiffs can, in effect, choose their judge by selecting a division in which a single judge sits.”
Earlier today Kelsey Ables, in the same newspaper, noted that 12 states are suing the FDA to make mifepristone more accessible. The legal challenge, filed Thursday in Washington, is led by the attorneys general in that state and Oregon. AGs from Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont have joined them.
The Biden administration has sought to make these pills easier to access. The FDA this year moved to permit more pharmacies to dispense the pills, and the Justice Department said such drugs can legally be mailed to any state, including those where abortion is banned or sharply curtailed.
Mifepristone manufacturer GenBioPro has also sued West Virginia, where access to the drug and abortion is strictly limited. The company argues that the restrictions are in violation of federal law that permit the FDA to regulate drugs.
The efforts have met pushback by opponents of abortion. West Virginia Attorney General Patrick Morrisey (R) this week asked a judge to dismiss GenBioPro’s challenge, arguing that Congress has not given the FDA oversight over “this vast area of historically state regulation.”
Kansas Attorney General Kris Kobach (R), a hard-line social conservative, said this week that he had received a commitment from Walgreens pharmacy chain not to mail abortion pills into the state. A senior Walgreens official said in a letter released by Kobach that it “does not intend to dispense Mifepristone within your state and does not intend to ship Mifepristone into your state from any of our pharmacies.”
Antiabortion groups also filed a lawsuit against the FDA in November, in an attempt to force the agency to rescind its approval of mifepristone. They claim the FDA ignored side effects of the drug, and argue that pregnancy is not an “illness” and “abortion chemicals” do not provide a “therapeutic benefit.”
Legal experts have called the suit, filed in a U.S. court in Texas, baseless. It has come under the purview of District Court Judge Matthew Kacsmaryk, a Trump nominee known for his socially conservative views. If he rules in the plaintiffs’ favor, “64.5 million women of reproductive age” nationwide risk losing access to medication abortion, according to NARAL Pro-Choice America.
The plaintiffs in the Washington case, by contrast, are seeking that a judge declare mifepristone “safe and effective” and that the FDA was “lawful and valid” in approving the drug. The request raises the prospect of conflicting rulings from trial courts in different parts of the country on the pill’s safety.
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