Two Judges, Two Abortion Pill Rulings—'Totally Different Worlds’

The two US district court judges who issued conflicting orders on an abortion drug last week are both former federal prosecutors and that’s where the similarities between them end.

Judge Matthew Kacsmaryk, who said the US government’s decades-old approval of mifepristone should be suspended nationwide, has spent his entire career in Texas—including as the general counsel for a conservative religious legal group. As a Trump-appointed judge, he’s become a magnet for conservative lawyers seeking favorable outcomes.

Thomas O. Rice, who issued a preliminary injunction to keep the drug on the market in 17 states and D.C. the same day, was born in Spokane and has spent nearly his entire career there. The Obama appointee has made few headlines beyond eastern Washington state since taking the bench.

The differences in their orders are pronounced, say legal scholars. Rice’s order was a “dry,” “dispassionate” outline of how the Food and Drug Administration altered its restrictions on mifepristone, said Elizabeth Sepper, a health law professor at the University of Texas at Austin School of Law.

Kacsmaryk used italics in his 67-page order to seemingly emphasize his anger that the government ever approved it to begin with and filled it with buzzwords like “unborn human” and “chemical abortion” invoked by the anti-abortion movement, Sepper said.

“From the very beginning, to read these opinions is to live in two totally different worlds,” Sepper said.

Rice, 62, attended college and law school at Spokane’s Gonzaga University and then, after a brief tour with the Justice Department in Washington, returned home to work there as an assistant US attorney for 25 years.

His cases included the 2011 prosecution of a domestic terrorism suspect charged with a thwarted attempt to bomb a Martin Luther King Jr. Day Unity March in Spokane.

Rice has served on the US District Court for the Eastern District of Washington since he was confirmed by the Senate, 93-4, in 2012.

Mary Schultz, a trial attorney in town, called Rice “no nonsense,” “efficient,” and “deliberative.”

“I haven’t found him to be beholden to any interest in his rulings,” said the founder of Mary Schultz Law PS.

Phillip Wetzel, a Spokane criminal defense attorney, recalled Rice being a tough but fair prosecutor and “very measured” as a judge.

Wetzel said Rice granted sentences more lenient than the federal guidelines recommended in several cases he brought before him.

Kacsmaryk, who sits on the US District Court for the Northern District of Texas in Amarillo, has a very different reputation. Confirmed 52-46 in a 2019 vote that was virtually along partisan lines, the judge now in his mid-forties has become well-known for his anti-abortion beliefs.

“He has articulated himself to be an anti-abortion activist, has factually worked on behalf of organizations that are anti-abortion,” said Michele Bratcher Goodwin, a Chancellor’s professor of law at the University of California, Irvine School of Law. “That’s not my opinion, that is who this judge happens to be.”

Like Rice, Kacsmaryk worked as an assistant US attorney in the district where he sits but didn’t spend his career there. He went on to serve as deputy general counsel for First Liberty Institute, a conservative religious legal group.

Since becoming a judge, Kacsmaryk has gained national attention for tossing rules aimed at expanding teen access to birth control and rejecting a policy that stopped doctors from discriminating against people based on their sexual orientation or gender identity.

Rice has also had cases that dealt with hot-button issues but they haven’t garnered as much attention. In 2018, he permanently blocked the Trump administration from terminating grant funding that Planned Parenthood affiliates use for teen pregnancy prevention programs.

A year later, he ruled against a Washington firefighter who tried to renew his Deferred Action for Childhood Arrivals status but was denied. In appealing that decision Christian Herrera claimed he wasn’t given adequate notice, explanation, or opportunity to respond.

Rice ultimately granted the government’s request to dismiss the case. He said Herrera hadn’t alleged any facts to establish a legitimate claim of entitlement to renewal of his DACA status. He even noted that the program’s FAQs clarify that U.S. Citizenship and Immigration Services retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met.

Stephen Vladeck, who teaches at the University of Texas at Austin School of Law, said the dueling orders from Rice and Kacsmaryk are a good illustration of the kind of district court judges appointed by Barack Obama and Donald Trump.

“President Trump made no bones about his desire to put young, very conservative, some might even say aggressive judges on the federal bench,” he said. “I think it was a common criticism from the left of President Obama that a number of his judicial picks were more centrist.”

There are names of Trump district judges that people who follow national legal news all know, Vladeck said. “How many Obama district court judges can we say the same about?”

— With assistance from Ben Penn.