Abortion Pill Court Docket Delay Concerns Legal Advocates (1)

A hearing this week in the contentious fight over an abortion drug was announced Monday after the federal judge presiding over the case got blowback for trying to keep it concealed from the public.

Attorneys said it’s extremely rare, even unconstitutional, for the public not to get notice of a court hearing. Advocates, meanwhile, expressed concern that other judges may borrow from the Trump appointee’s playbook in future fights over hot-button social issues.

The case docket was updated late Monday to reflect a hearing to be held on Wednesday at 9 a.m. in the US District Court for the Northern District of Texas.

Judge Matthew Kacsmaryk scheduled the March 15 hearing in a call with attorneys March 10 but said he would delay putting it on the docket until the day before and asked attorneys not to share any information before then to minimize disruptions and possible protests, according to a report in The Washington Post.

His actions in the last few days “have been naked political action that’s meant to obfuscate his process from the eyes of the public,” said Rachel Carmona, executive director of Women’s March, which led a protest to draw attention to the case on March 11 in Amarillo, Texas, where Kacsmaryk sits.

“What he’s doing should, to any objective person’s mind, end the question of whether he is an activist or a textualist because these are not the actions of a person who is committed to the faithful execution of precedent or process of our judicial system,” she said.

FDA Approval Challenged

Kacsmaryk didn’t respond to an email requesting comment, and a message left in his chambers was not returned, but Priests for Life National Director Frank Pavone came to Kacsmaryk’s defense, saying “he has very good reasons” for wanting to keep the hearing low-key.

“He has been derided in the media for his devout Christian faith and his unwavering belief in the sanctity of all human life and has been the target of threats since President Trump nominated him to the federal bench in 2019,” Pavone said in a statement, adding that pro-life organization have been under attack by pro-abortion activists.

The case before Kacsmaryk is one of the biggest fights over abortion to come since the US Supreme Court overturned Roe v. Wade and the constitutional right to the procedure in June.

Four medical associations and four doctors have asked Kacsmaryk to issue a preliminary injunction to stop the sale and distribution of mifepristone, a drug used as part of a regimen to end a pregnancy within the first 10 weeks.

The groups, represented by Alliance Defending Freedom, argue the Food and Drug Administration unlawfully approved the drug decades ago. In addition to abortion, mifepristone is also commonly prescribed for treatment of a miscarriage.

Attorneys for Alliance Defending Freedom and the US Justice Department did not respond to requests for comment.

A coalition of media organizations, including the Reporters Committee for Freedom of the Press, ProPublica Inc., and the Texas Press Association, urged Kacsmaryk in a letter earlier in the day Monday to immediately put a notice of the reported March 15 hearing on the court’s public docket.

“Restrictions on the ability of the press and public to attend judicial proceedings can be justified only by a compelling governmental interest and, even then, such restrictions must be narrowly tailored to advance that interest,” the coalition wrote, citing US Supreme Court precedents under the First Amendment. “No such compelling governmental interests are present here.”

Legal experts say it isn’t particularly unusual for judges to close hearings off to the public, such as for safety concerns, but the fact that hearings are happening is still typically listed in the docket. To withhold any mention of it is especially rare.

“It’s possible to not allow an audience for a hearing in certain circumstances,” said Sabrina Talukder, director of the Women’s Initiative at the Center for American Progress. “But not putting it on the docket is an entirely different matter.”

Carmona was working Monday to organize a protest in Amarillo during Wednesday’s hearing.

“Even if it’s just me with a sign, we will be there,” she said.

Not notifying the public about a hearing because the judge is concerned about protests seems really strange in a case that’s designed to provoke controversy, said Rachel Rebouché, dean of Temple University’s Beasley School of Law.

“I’m not sure what protests would do to the court’s deliberation,” she said.

‘Loss of Trust’

The case has already garnered criticism for both the merits of the legal challenge itself and where it was filed. Alliance Defending Freedom has been accused of judge shopping for a favorable outcome by choosing to file in the Amarillo division where they were all but assured to get Kacsmaryk. Under the court’s current orders, he is assigned to hear 100% of civil and criminal cases in that division.

Because of that, people already “are uncomfortable and have a loss of trust in the process,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law.

“Then to do it in a way that has the effect of being undercover and not allowing both legitimate and lawful protests outside and also making it harder for the media to get there, it threatens further loss of trust,” she said.

Fix the Court, a group that advocates for more transparency in the judiciary, asked for audio of Wednesday’s hearing in the case to be livestreamed to the public, but that request was rejected on Monday.

When cases garner as much interest as this fight has since it was filed in November, it’s even more important for a court to conduct hearings openly and per customary process so the public can see the basis for the court’s decision, said Susan Lee, a partner in the life sciences group at Goodwin Procter LLP, who counsels biologic and drug makers.

“Secrecy and procedural deviations have the potential to erode public confidence in the even-handedness of the judiciary and violate the core principles of transparency and public access that are fundamental to our democratic government,” she said.

The case is Alliance for Hippocratic Medicine v. US Food and Drug Administration, 2:22-cv-00223, US District Court, Northern District of Texas (Amarillo).