A pivotal dispute over the Food and Drug Administration’s approval of the abortion pill mifepristone has sparked new allegations of “judge shopping” by plaintiffs seeking a favorable audience for their litigation.
Much of the abortion pill litigation has taken place in Amarillo, Texas, which has a federal division with only one district judge, Matthew Kacsmaryk.
Appointed to the Federal Bank in 2019 by former President Donald Trump, this judge previously worked for the conservative Christian rights group First Liberty Institute and represented socially conservative views on LGBTQ rights and abortion.
By filing the lawsuit in Amarillo, the cadre of anti-abortion groups seeking to nullify the FDA’s more than two-decade approval of the drug virtually guaranteed that Kacsmaryk would hear their case. Critics have accused the plaintiffs of targeting Kacsmaryk as chair of the case because he was seen as more sympathetic to their arguments that the drug had major safety concerns.
“We can’t always predict that judges will act according to their biographies,” Mary Ziegler, a law professor at the University of California, Davis, told CNBC.
But “if you’re the Alliance Defending Freedom” — the rights group representing some of the plaintiffs — “you’re going to want someone like this [Kacsmaryk] because your chances will be better,” she said.
The Amarillo court did not immediately respond to CNBC’s request for comment.
The strategy of targeting one-judge sections harms perceptions of judicial fairness, critics say. They argue that plaintiffs are bypassing the usual process of randomly assigning cases — which is designed primarily to “avoid judge shopping,” according to a federal court.
Kacsmaryk on Friday suspended mifepristone approval, giving the Biden administration time to appeal. On the same day, another federal judge ordered the FDA not to restrict the pill’s availability in 17 states, essentially contradicting the Texas judge’s decision. The matter could go all the way to the US Supreme Court, which has a Conservative majority of 6-3.
A ruling on the legal status of the pill will have massive ramifications across the country, including in states that allow abortion following the court’s decision in Roe v. Repeal Wade last year remains legal. Medical abortion is the most common form of surgery in the United States
A lawyer for the ADF has rejected allegations of judge purchasing.
“We’re very confident that any judge who looks at FDA regulations and what the FDA actually did will rule for us,” Denise Harle, senior counsel for the ADF, told Fox News in February. “That’s what we’re looking for, just a fair trial, a fair opportunity to make our case in court.”
Harle also told Fox that the Alliance for Hippocratic Medicine, a group of anti-abortion doctors represented by the ADF, is based in Amarillo.
But the Kacsmaryk courthouse has reportedly become a prime target for conservative legal affairs. The judge has repeatedly sided with the challenges of the Biden administration’s policies.
Other judges have made similar allegations. Trump was accused of shopping for judges in Florida for his nominated federal judge Aileen Cannon when he filed a sweeping lawsuit against his former political rival Hillary Clinton in Cannon’s Florida division in 2022.
That case was instead assigned to Judge Donald Middlebrooks, an appointee of ex-President Bill Clinton. Middlebrooks dismissed it.
But Cannon months later was randomly assigned to another Trump trial in which a judge was asked to appoint a “special master” to review government documents the FBI obtained in an August 2022 raid on the resort town of Mar-a- Lago had confiscated the ex-president. Cannon granted Trump’s request, surprising some legal experts at the time.
It is not new for litigants to seek to have their cases heard in the most favorable environment. The strategy is also nonpartisan: Ziegler noted that a challenge to then-President Trump’s controversial travel ban in Hawaii was filed in 2017.
This form of forum shopping is “always a kind of imperfect substitute” for those who are looking for a sympathetic judge, said Ziegler. She found that there are progressive judges in conservative states and vice versa.
However, by filing a complaint in a chamber with a single judge, it is easier for a plaintiff to target a specific judge.
Constitutional law expert Steve Vladeck wrote in February: “Of the 27 divisions of Texas’ four circuit courts, nine have a single judge; ten others have only two.”
In a separate case brought before Kacsmaryk this year, the Justice Department requested a transfer to another federal court, arguing that the decision to place the Amarillo court “undermine public confidence in the administration of justice” because the court “has no connection to this dispute.” Kacsmaryk refused this request.
Another DOJ letter in February singled out Texas Attorney General Ken Paxton and accused the Republican official of filing 18 of his 28 lawsuits against the Biden administration in one-judge divisions. Paxton’s office has defended its decisions on where to file its cases, telling CNN last month that the Biden administration’s allegations risk “undermining public confidence in the legal system.”
Ziegler shared the view that even the appearance of judge purchases can erode trust in the courts.
“When the public knows that you can order an outcome by picking a judge, it becomes really difficult to convince the public that the courts are legitimate,” she said.
