By Evelyn Doran*

In August 2022, the Alliance for Hippocratic Medicine (AHM) filed its articles of incorporation in Amarillo, Texas.[1] Three months later, it filed a complaint in the District Court for the Northern District of Texas, the federal district court that serves Amarillo and the surrounding region.[2] In this complaint, it alleged that the Food and Drug Administration’s (“FDA”) 2000 approval of the drug Mifepristone for use in a medication abortion regimen was unlawful and enabled the criminal provision of said drug.[3] When AHM filed its suit, it did not have to guess which judge would review the case—rather, it knew that its complaint would land on the desk of Judge Matthew Kacsmaryk. Kacsmaryk, who was nominated by Donald Trump in 2017, serves as the sole judge for the Amarillo Division of the Northern District of Texas.[4]

With this context in mind, the language in Judge Kacsmaryk’s recent order, which issued a stay requiring the FDA to rescind its approval of Mifepristone, starts to make a lot more sense. Judge Kacsmaryk has been an outspoken opponent of abortion for years and has already been accused of values-based adjudication in his short time on the bench.[5] The policymaking that this order achieves, as well as the value-laden language it uses, serves as a prime example of the way judicial outcomes have increasingly appeared to serve a political end, rather than a jurisprudential one.

Over the past year, public trust in the Supreme Court has waned.[6] Americans are increasingly concerned that the Court allows its biases and personal values to impact what should be a fair, neutral review of the claims before it.[7] But this attitude does not stop at the high court. Rather, many feel that it extends to the federal circuit and district courts.[8] People that interact with the federal judiciary have come to recognize certain jurisdictions as deeply partisan, with the Fifth Circuit (the circuit that will review Judge Kacsmaryk’s order) epitomizing this trend. During his presidency, Trump appointed six judges to the Fifth Circuit.[9] These judges are all outspoken conservatives, and many entered the judiciary after working for Republican campaigns and state offices.[10] This trend is mirrored at the district court level as well, as Trump appointed a total of 226 judges in the span of four years.[11] Though this total is lower than that of recent two-term presidents,[12] it is still noteworthy because of how much Trump was able to reshape the federal judiciary in four years.

One such appointee is Judge Kacsmaryk, whose role in this larger trend is clear in his recent order. In the order, he makes determinations regarding the legality of the FDA’s prior approval of Mifepristone by relying on unscientific and politically charged notions of pregnancy, motherhood, women’s health, and bodily autonomy.[13] In the course of doing so, he roots his arguments in a paternalistic understanding of how women’s bodies must be policed. Indeed, Judge Kacsmaryk borrows much of his rhetoric directly from the plaintiffs’ complaint, making sure to note the importance of using the terms “unborn child” or “unborn human” to describe the fetus, even though medical professionals have disavowed these terms as medically inaccurate.[14] These rhetorical decisions, along with his characterization of Planned Parenthood and other clinics and physicians that provide abortions, betray his biases.[15] Before joining the bench, Judge Kacsmaryk decried marriage equality, reproductive rights, anti-discrimination laws, and state bans on conversion therapy.[16] In an article he wrote for the conservative think tank The Witherspoon Institute, he opined that the expansion of access to abortion “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”[17]

This brief analysis of one judge’s political engagement prior to his time on the bench and how it has crept into his adjudication provides but a small window into what is a much larger problem. As we become increasingly divided, judges may be incentivized to reach conclusions in politically contentious cases that serve their personal policy goals. We can see this trend at work in recent rulings on access to reproductive medical care, religious liberty, and gender-affirming care.[18] Public trust also reflects this reality, as many people have become disenchanted with the judiciary, and feel that it has fallen short of its role as a neutral arbiter of justice. If the courts want to maintain the goodwill of the people it serves, they will ultimately need to find a way to win back that public trust.

*Evelyn Doran is a staff member for Volume 41 of the Minnesota Journal of Law & Inequality.

[1] Jordan Smith, The Shadow Medical Community Behind the Attempt to Ban Medication Abortion, Intercept (Feb. 28, 2023), https://theintercept.com/2023/02/28/medication-abortion-lawsuit/.

[2] Id.

[3] Complaint at ¶¶ 50, 115-17, Alliance for Hippocratic Medicine v. FDA, No. 2:22-cv-00223-Z (N.D. Tex. Nov. 18, 2022).

[4] Brendon Pierson & Tom Hals, Judges Issue Conflicting Abortion-Pill Injunctions, Reuters (Apr. 10, 2023), https://www.reuters.com/legal/us-judge-hands-anti-abortion-groups-partial-win-over-abortion-pill-2023-04-07/#:~:text=April%207%20(Reuters)%20%2D%20A,rights%20in%20the%20United%20States.; Amarillo Court Information, U.S. District Court N.D. Tex., https://www.txnd.uscourts.gov/location/amarillo (last accessed Apr. 13, 2023); Judge Matthew J. Kacsmaryk, District Judges, https://www.txnd.uscourts.gov/judge/judge-matthew-kacsmaryk (last accessed Apr. 13, 2023).

[5] Smith, supra note 1.

[6] Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

[7] Id.

[8] Ann E. Marimow, Trump’s Lasting Legacy on the Judiciary Is Not Just at the Supreme Court, Wash. Post (Jan. 29, 2023), https://www.washingtonpost.com/politics/2023/01/29/5th-circuit-court-trump-judges-conservative/.

[9] Id.

[10] Id.

[11] John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.

[12] President Obama appointed a total of 320 federal judges, while President Bush appointed 322. Id.

[13] See, e.g., Alliance for Hippocratic Medicine v. FDA, No. 2:22-cv-00223-Z, at 40 (Apr. 7, 2023) (holding that Mifepristone does not provide a meaningful therapeutic benefit in part because pregnancy is “a normal physiological state most women experience one or more times during their childbearing years,” and failing to recognize the serious medical complications that often accompany pregnancy). Cf., Pregnancy Mortality Surveillance System, Ctrs. for Disease Control & Prevention (Apr. 15, 2023), https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm.

[14] Compare Alliance for Hippocratic Medicine, No. 2:22-cv-00223-Z , at 2, n.1 (“Jurists often use the word ‘fetus’ to inaccurately identify unborn humans in unscientific ways. . . . [T]his Court uses ‘unborn human’ or ‘unborn child’ terminology throughout this Order, as appropriate.”), with ACOG Guide to Language and Abortion, Am. Coll. Obstetricians & Gynecologists (Apr. 15, 2023), https://www.acog.org/contact/media-center/abortion-language-guide (“Centering the language on a future state of a pregnancy is medically inaccurate. As long as the pregnancy continues, the language should reflect the current state. Through 8 weeks after last menstrual period, [use the word] ‘embryo.’ After that point until delivery, [the correct term is] ‘fetus.’”).

[15] Throughout the order, Judge Kacsmaryk refers to Planned Parenthood and other clinicians as “abortionists” and “eugenicists.” See, e.g., Alliance for Hippocratic Medicine, No. 2:22-cv-00223-Z, at 2, n.2. The American College of Obstetricians and Gynecologists has disavowed this language as well. See American College of Obstetricians and Gynecologists, supra note 14.

[16] All. for Just., AJF Nominee Report: Matthew Kacsmaryk, https://www.afj.org/wp-content/uploads/2019/12/AFJ-Kacsmaryk-Report.pdf.

[17] Mathew Kacsmaryk, The Inequality Act: Weaponizing Same-Sex Marriage, Pub. Discourse (Sept. 4, 2015), https://www.thepublicdiscourse.com/2015/09/15612/.

[18] See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. ___ (2022); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Franciscan Alliance v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).