On Friday, federal Judge Matthew Kacsmaryk held a conference call with the lawyers involved in the case that could result in a national ban of the abortion drug mifepristone. He wanted to talk about the hearing that’s taking place this Wednesday in Amarillo, Texas, that may well end in him immediately banning the pill. Specifically, Kacsmaryk said he wanted to keep the hearing off the online public docket as long as possible to avoid “any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding.”
“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing. This is not a gag order, but just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received,” Kacsmaryk said, according to a transcript of the call published by TPM. “We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”
Kacsmaryk reiterated: “So I’m not ordering under any gag order doctrine that you are gagged. I’m just requesting it as a courtesy to the court and court staff.”
The Washington Post first reported Kacsymaryk’s statements on the call over the weekend.
Threats made against the people who keep the court machine chugging along—clerks, security guards, parking attendants, what have you—are troubling. But a federal judge asking people to not share with citizens information about an incredibly consequential public hearing is extremely dangerous.
In the hearing on Wednesday, lawyers from the conservative cranks at the Alliance Defending Freedom (who brought the suit), the Justice Department, and the drug company that manufactures mifepristone will make their case to Kacsmaryk, who was appointed to the bench by former President Donald Trump in 2019. Kacsmaryk could then immediately rule that the Food and Drug Administration was wrong to approve the drug more than two decades ago (no matter how many times it’s been used safely since). Even more harrowing, though, is the possibility that Kacsmaryk will issue an injunction to stop the distribution of this drug nationwide, keeping it out of the hands of patients while the case makes its way through the federal judiciary system.
Abortion is immensely popular, and keeping secret the hearings leading up to the decision to ban one of the main pills is not going to make it any more tolerable to the public. Nor does it endear you to the news media, or any advocates of the free press. On Monday, a diverse coalition of media groups wrote to Kacsmaryk to object to his shady behavior. The Reporters Committee for Freedom of the Press, the Washington Post, NBCUniversal News Group, ProPublica, Texas Press Association, the Freedom of Information Foundation of Texas, The Markup, and Gannett (which publishes the Amarillo Globe-News and seven other Texas newspapers) wrote in a letter to Kacsmaryk saying that, while they appreciate the concerns, the security plans already in place have been working.
“The Court cannot constitutionally close the courtroom indirectly when it cannot constitutionally close the courtroom directly,” the coalition’s attorney wrote. “While we are aware and mindful of the Court’s expressed concerns regarding security, the Government’s security plan has been effective, and there is no reason to believe, based on the record, that it is insufficient to protect all hearing participants and court staff.”
Kacsmaryk’s suggestion that there would only be protests in the city where the hearing takes place is shortsighted and stupid! Banning mifepristone is so much bigger than this one judge and one court in Texas, because Kacsmaryk has the ability to ban it—at least temporarily—nationwide. If you want to take away people’s right to control their own reproduction, you have to live with the consequences, and one of those consequences will be protests by people who believe in the right to bodily autonomy.
The First Amendment gives all Americans the right to peacefully assemble, and if Kacsmaryk bans mifepristone, you can bet your ass we will be peacefully assembling.