Opinion: Why one judge in Amarillo got to decide whether any American could use the abortion pill
Although the Supreme Court’s ruling Friday allows the abortion pill mifepristone to remain available while the matter continues to be litigated, the case reveals underlying problems in the judicial system that must be addressed. Litigants should not be able to handpick a judge who then can issue a nationwide injunction throwing the entire country into chaos.
Mifepristone has been approved by the Food and Drug Administration since 2000 as part of a two-drug protocol that is used to terminate pregnancies. It is estimated that 54% of abortions in the United States use these drugs. Before the federal district court’s order that the sale and distribution of mifepristone be stopped, never had any judge overruled the FDA’s approval of a drug.
How then did we get to the brink of mifepristone being made unavailable, or being available only with great restrictions? Antiabortion activists found a way to ensure that their lawsuit would be heard by a specific judge who was known to be very hostile to abortion rights. He then used his power as a single judge to issue a nationwide injunction against the continued availability of mifepristone anywhere in the country.
Conservative Supreme Court refused to second-guess the FDA’s approval of abortion pills as safe and effective.
There are 94 federal district courts in the U.S., with each district split into divisions. In Texas, there are four federal district courts with 27 divisions in total. In eight divisions, there is only one judge. Any case filed in that division goes automatically to that judge. In other words, the litigants know exactly who will get their case.
The only federal judge in the Amarillo division of the U.S. District Court for the Northern District of Texas is Judge Matthew Kacsmaryk, a Trump appointee and former lawyer for the conservative legal group First Liberty Institute. Conservative litigators know if they file their case in federal court in Amarillo, their judge will be Kacsmaryk.
When Texas wanted to challenge President Biden’s decision to end the Trump-era “Remain in Mexico” policy — which required those seeking asylum in the U.S. to remain in Mexico while their applications were being considered — Kacsmaryk was their man. In December, Kacsmaryk ruled that it was unconstitutional for clinics receiving federal funds under a law enacted in 1970 to provide contraceptives to minors without parental consent. In doing so, he ignored Supreme Court precedents that explicitly protect a fundamental right of minors to have access to contraceptives.
Kacsmaryk is not the only option for conservatives. If they file in federal court in Wichita Falls, Texas, the judge will be Reed O’Connor. He is the judge who invalidated the Obama administration’s protection of transgender students, declared unconstitutional the Affordable Care Act, struck down the Indian Child Welfare Act, and blocked the military from requiring Navy SEALs to be vaccinated. And until recently, if a case was filed in Victoria, Texas, the only federal district judge in that division hearing civil cases was Drew Tipton, another Trump appointee. He too has invalidated other Biden attempts to reverse restrictive Trump-era immigration policies.
Antiabortion groups ‘forum shopped’ for a Trump judge likely to block medication abortion nationwide
Not surprisingly, when the conservative legal group Alliance Defending Freedom wanted to end the availability of mifepristone, they chose Amarillo and Kacsmaryk’s court. He did not disappoint them. He wrote a stunning opinion, stressing that the embryo should be referred to as the “unborn child” or “unborn human,” relying on studies from antiabortion groups, and invoking an 1873 law to end the availability of mifepristone. He then issued a nationwide injunction stopping its availability anywhere in the country.
The matter went to three judges on the U.S. Court of Appeals for the 5th Circuit, two of whom are Trump appointees. These judges did not go as far as Kacsmaryk, but would have overturned the FDA’s decisions to allow the drug to be used until the 10th week and to remove the requirement that mifepristone be taken in a doctor’s office. The Supreme Court’s decision Friday sent the matter back to the 5th Circuit and is keeping current FDA policy on mifepristone in place while the case is litigated.
We never should be in this mess. The rules should be changed to prevent such blatant judge shopping. The rules should require that there be random selection from at least 10 federal judges for any case. When there is a request for a nationwide injunction, it should be assigned randomly to any judge in that federal circuit. And it is time to rethink the power of a single federal judge to issue a nationwide injunction, deciding a constitutional issue for the entire country.
For now, mifepristone remains available and the immediate crisis has been averted. But what led to this must be fixed. Judge shopping is inconsistent with the strong federal policy in favor of random assignment of judges. It undermines any semblance of a fair judicial process.
Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”
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