Ahead of a major hearing scheduled for Wednesday in a closely watched case which could further limit abortion access across the United States, reproductive rights advocates and journalists are decrying what one attorney called a right-wing judge's "informal gag order... bordering on judicial misconduct."
U.S. District Court Judge Matthew Kacsmaryk is scheduled to preside over the first hearing in a case brought by right-wing group Alliance Defending Freedom (ADF) in Amarillo, Texas on Wednesday, with lawyers for the organization arguing that the Food and Drug Administration (FDA) should never have approved mifespristone for medication abortion use in 2000, and the U.S. Justice Department opposing that claim. ADF aims to force the FDA to revoke its approval.
As The Washington Post reported Saturday, the right-wing judge scheduled the hearing last Friday in a call with lawyers on both sides, and in what one expert called a "very irregular" move, directed the attorneys to keep the hearing under wraps in order to minimize the possibility of protests.
Kacsmaryk also said he would delay putting the hearing on the public court docket, as judges usually do to keep the public and media informed about developments. He indicated he would make the hearing public knowledge only on Tuesday evening, making it difficult for Texans and members of the media to travel to Amarillo from other parts of the state and country. The city is a five-and-a-half hour drive from Dallas, the closest major Texas city; a nearly four-hour drive from Oklahoma City; and served by few daily direct flights.
When I went last month, it took me nine hours door to door from NYC.
— Caroline Kitchener (@CAKitchener) March 12, 2023
At Law Dork, journalist Chris Geidner pointed out that Kacsmaryk violated the requirements he claims to uphold in his own courtroom. The "Judge Specific Requirements" on his page at the website for the U.S. District Court for the Northern District of Texas include that Kacsmaryk "heavily disfavor[s] sealing information placed in the judicial record."
"Going further, Kacsmaryk's requirements highlight the U.S. Court of Appeals for the 5th Circuit's rulings that recognize 'the public's right to know' about what's going on in our courts, requiring litigants to explain—with signed declarations—why 'the risks of disclosure' would 'outweigh' that right of the public to know what's happening in court," noted Geidner. "In order to even consider sealing anything on his docket, Kacsmaryk requires litigants to 'explain that no other viable alternative to sealing exists.'"
Judge Matthew Kacsmaryk’s secrecy in the mifepristone case is bad enough on its own — but what makes it worse is how his secrecy here contradicts the principles about open courts described in his own court rules. https://t.co/XusPanJ9Wg
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) March 13, 2023
Kacsmaryk said Friday on his call with the attorneys that he was requesting they keep information about the hearing secret "as a courtesy," but Geidner said on Saturday that he "in effect, if not in actuality, put a gag order on the parties."
"This is a civil case with huge national implications challenging public, some long-standing, government actions," tweeted Geidner. "The affirmative decision to hide public notification of a hearing set on Friday until Tuesday night explicitly to decrease the chances of the public learning of the hearing in an attempt to decrease public participation is so unacceptable it is simply not judicial behavior."
Following the hearing, Kacsmaryk could hand down a ruling at any time. A decision in favor of ADF would immediately force abortion clinics across the U.S. to shift to providing only surgical abortions—which account for fewer than half of abortions in the U.S. each year—or medication abortions using only misoprostol.
ADF has argued that the U.S. government ignored evidence of harmful side effects of mifepristone when it approved the drug in 2000, but medical experts say misoprostol-only abortions carry greater risks of side effects like cramping and bleeding. Using misosprostol without mifepristone is also somewhat less effective at ending a pregnancy.
The FDA is arguing in the case that it has rigorously reviewed the safety and effectiveness of mifepristone as it has repeatedly reaffirmed its authorization of the drug in the past 23 years, and said in a court filing that revoking its approval would "cause significant harm, depriving patients of a safe and effective drug that has been on the market for more than two decades."
