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Conservative Judge Tries To Hide Abortion Hearing, Learns About 'Streisand Effect'

Judicial rot meets disinfectant sunlight.

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Reproductive Rights AbortionBetween Leonard Leo and Senator Mitch McConnell, the federal judiciary is set up to roll back a generation’s worth of legislation protecting women, minorities, and LGBTQ+ Americans. This is a rigged game, and nowhere is that more apparent in the single-judge districts like the Northern District of Texas’s Amarillo section, where the GOP parked conservative activist Matthew Kacsmaryk, making the town the premiere destination for judge-shopping.

Judge Kacsmaryk has already issued nationwide injunctions on immigration and laws protecting transgender workers from discrimination, so naturally a coalition of anti-abortion groups calling themselves the Alliance for Hippocratic Medicine made a beeline for his docket in their effort to ban the drug mifepristone. Their theory of the case is that “the FDA exceeded its regulatory authority” when it approved the commonly used abortifacient because “pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion.” 

But conservatives weren’t content to rig the game in all the normal ways, so Judge Kacsmaryk has taken it one step further by attempting to shield the hearing from public view.

As first reported by the Washington Post, Judge Kacsmaryk held a conference call with the parties on Friday during which he scheduled a hearing for this coming Wednesday on whether to issue a nationwide injunction on the drug. But in an effort to “minimize disruptions,” he said he was going to keep the hearing off the public docket until Tuesday night.

Amarillo is a four-hour drive from any other major metro area, with few direct flights to its airport. So Kacsmaryk’s effectively sealed order would have the effect of keeping most protestors away. It would also mean that reporters, given just a few hours notice, would be unlikely to be able to get there in time to cover it.

The public right of access to judicial proceedings is axiomatic, and preventing core First Amendment activity is clearly an inappropriate reason to seal a minute order. And the irony of a judge seeking to shield his own courtroom from protest while women seeking medical care are barraged daily by activists exercising their First Amendment right to hurl abuse is thick.

Moreover, as legal reporter Chris Geidner points out, it’s more than a little ironic that Judge Kacsmaryk’s own page on the Northern District of Texas website cautions that “parties seeking to file a specific document under seal must: (1) move for leave to do so; (2) brief the legal authorities indicating the risks of disclosure outweigh the public’s right to know; and (3) explain that no other viable alternative to sealing exists.” Naturally, Judge Kacsmaryk cites two Fifth Circuit abortion decisions in support of this prohibition.

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Whatever the court’s rationale, Judge Kacsmaryk’s cack-handed effort to seal the hearing sub rosa by asking the attorneys to keep quiet about it as a “courtesy,” seems to have failed spectacularly. A coalition of media intervenors just filed an objection to the court’s failure to docket the case, noting that “no compelling governmental interest justifies the Court’s actions.” But whether or not docket entry 124 magically appears at midnight tomorrow, the effort to hide the hearing has instead focused a klieg light on it, illuminating once again that this is a ridiculous, partisan exercise.

You know, in case a bunch of men arguing about whether women derive therapeutic benefit from safely taking a pill in private rather than running a gauntlet of protesters en route to unnecessary surgery wasn’t a tipoff that this whole thing was bullshit.

In an unusual move, judge delays public notice of abortion-pill hearing [WaPo]
Alliance for Hippocratic Medicine v. FDA [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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