The Supreme Court is set to issue a ruling on a huge abortion pill case sometime on Friday, despite the fact that it’s an absolutely baseless lawsuit cooked up by activists and never should have made it this far.
At the center of it all is federal Judge Matthew Kacsmaryk, the former deputy general counsel at the First Liberty Institute, a Christian legal organization. Kacsmaryk said in an April 7 ruling that the FDA should revoke its 22-year-old approval of the drug mifepristone, despite the fact that judges can’t tell the FDA what to do. Kacsmaryk has faced scrutiny not for only the baseless ruling and its wild anti-abortion language, but also for political and personal elements surrounding his 2019 confirmation to a lifetime seat on the federal bench.
So much has come out about the guy that it’s frankly hard to keep track! Here’s a cheat sheet:
The plaintiffs are a group of anti-abortion doctors with a mailing address in Tennessee but who legally incorporated their organization in Amarillo, Texas, in August 2022, per Rolling Stone. As of September 2022, Kacsmaryk is the only federal judge serving the Northern District of Texas’ Amarillo division. Alliance Defending Freedom (ADF), an anti-abortion, anti-LGBTQ group that helped overturn Roe v. Wade, filed the plaintiff’s lawsuit in November in Amarillo, guaranteeing they’d get Kacsmaryk as the judge. And, yes, the suit was filed after mifepristone had been on the market for two decades.
Connections to Sen. Josh Hawley
Erin Morrow Hawley is an ADF lawyer working on the suit; she argued the case before Kacsmaryk in March. Erin is the wife of Sen. Josh Hawley (R-Mo.), and Jezebel reported that Kacsmaryk donated $500 to Hawley’s campaign in March 2018. After winning his seat, Hawley not only voted to confirm Kacsmaryk, but signed on to a Supreme Court amicus brief supporting his wife’s case this week.
Trying to keep a hearing secret
Kacsmaryk asked lawyers in the case on Friday, March 10, not to publicize the fact that he would hold a hearing on Wednesday, March 15. He told them he’d file a notice the night before the hearing, a move that experts said was not only unusual but “deeply concerning.” It’s especially problematic because Amarillo is several hours away from major airports, and last-minute disclosure would make it difficult for reporters or protestors to attend. After swift backlash, he announced the time and date of the hearing that Monday afternoon.
Concealing the source of his wealth
In his 2020 and 2021 annual disclosures, Kacsmaryk redacted the name of the company in which he holds between $5 million and $25 million in stock, according to a report from CNN. The redacted holding comprised at least 85 percent of his total reported wealth in 2021. In a 2017 form that’s not online, Kacsmaryk reported owning about $2.9 million in stock in the supermarket chain Publix; it’s not clear whether that’s the same stock as the one he’s redacted recently, but it has significantly increased in value. His grandmother Mary was an early employee of the company, according to her 2017 obituary. Kacsmaryk told CNN that the “Administrative Office of the United States Courts approved the redaction after reviewing the relevant rules and applicable threats.” Still, Steven Lubet, an emeritus professor at Northwestern Law School who studies judicial ethics, told CNN that “the redaction of his single largest investment in common stock makes it impossible to know if he’s complying with his recusal obligations.”
Hiding his extreme views from the Senate—twice
Candidates being considered for federal judgeships have to disclose all of their public writings and interviews to the Senate. But before Kacsmaryk was first nominated to the bench in 2017, he removed his name from a law review article that criticized Obama administration healthcare protections for transgender people and people seeking abortions.
Per emails obtained by the Washington Post, Kacsmaryk requested an authorship switch after submitting a draft in which he wrote that the Obama policy was hostile to doctors who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.” The Post discovered that he made the request after he’d been interviewed by both Texas senators and was awaiting a White House interview.
Then CNN reported that Kacsmaryk failed to disclose two radio interviews in which he share his retrograde views on marriage equality and birth control—he did disclose three other radio appearances, however. He said in the undisclosed interviews that being gay is “a lifestyle” and that norms of social acceptance for “people who experience same-sex attraction” followed the sexual revolution.
“It came after no-fault divorce. It came after we implemented very permissive policies on contraception,” he said. “The sexual revolution has gone through several phases. We just happen to be at the phase now where same sex marriages is at the fore.”
Kacsmaryk is the same judge who ruled in December that teenagers need their parents’ consent to get birth control from federally funded clinics.
His confirmation vote was a razor-thin 52 to 46. Sen. Lisa Murkowski (R-Alaska), who voted yes, said after the story on the law review article she felt like she “got duped.” (I mean, even Sen. Susan Collins (R-Maine) knew to vote no, but sure.)
Connections to the Federalist Society
Kacsmaryk has deep connections to the conservative Federalist Society, of which Hawley is also a member. President Donald Trump picked all three of his Supreme Court justices from a Federalist Society-vetted list that was personally curated by the group’s former executive vice president and current co-chairman of the board, Leonard Leo. Kacsmaryk co-founded the Fort Worth, Texas, Federalist Society chapter and has spoken at at least 10 of its events, most recently on February 24—the same day final briefs were due in the abortion case.
After Trump first nominated Kacsmaryk in 2017, his employer, First Liberty Institute, paid the Leo-aligned firm CRC Advisors over $100,000 a year in both fiscal years 2018 and 2019. He was confirmed in June 2019. Tom Carter, who served as Leo’s media relations director when he was chairman of the U.S. Commission on International Religious Freedom (USCIRF), told the Daily Beast in 2018 that Leo “figured out twenty years ago that conservatives had lost the culture war. Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”
Remember all of this nonsense when the Supreme Court issues its ruling on abortion pills.