The street address of the Alliance for Hippocratic Medicine is a suite in a glossy office building tinted to reflect its surroundings. The building sits on the corner of South Taylor Street and Fifth Avenue in downtown Amarillo, mirroring the U.S. courthouse directly across the intersection that contains the chambers of federal judge Matthew Kacsmaryk. The AHM, which incorporated as a nonprofit organization in Texas last August, with a registered agent in Amarillo, is the lead plaintiff in a civil lawsuit moving through Kacsmaryk’s court that could outlaw the nation’s most common method of abortion, even in states whose legislatures have kept the procedure legal.
The complaint, filed in November, alleges that the U.S. Food and Drug Administration did not follow proper procedure when it approved mifepristone—the first in a two-step pill regimen for medication abortion—in September 2000. Some 22 years later, more than half of all abortions nationwide rely on that two-pill protocol, which medical experts say has proven to be both safe and effective. For those in Texas and other states where abortion bans have gone into effect since the U.S. Supreme Court overturned Roe v. Wade last June, the pills have made it possible to evade those restrictions by ordering them online.
If Kacsmaryk sides with the plaintiffs—four anti-abortion groups and four doctors—mifepristone could be pulled from the market immediately. If that happens, it would be a first. Never before has a federal judge overruled the approval of a drug by the medical specialists employed by the FDA. But that’s the outcome that most legal experts and advocates for reproductive rights are expecting—and bracing for.
From the time the suit was filed in November, questions have been raised about the lead plaintiff and whether it has any legal standing to file suit in Amarillo. The AHM may have an Amarillo street address, but it lists a mailing address in Bristol, Tennessee, on its incorporation documents. The enigmatic group’s single-page website says it is dedicated to “upholding and promoting the fundamental principles of Hippocratic medicine.” Otherwise, the page is sparse, featuring images of ornate stone detailing, Greek lettering, a woman in safety glasses holding a beaker, and an etching of Hippocrates. There are no board members listed, no references to past work, no phone number or email address, and no information about who funds the group. In court, the organization is being represented by a team of seven attorneys from Alliance Defending Freedom, a powerful religious-right nonprofit group based in Scottsdale, Arizona.
“It feels as though lawyers have created this case in the forum in which they want to litigate it,” said David Donatti, a staff attorney for the American Civil Liberties Union of Texas who previously worked on challenges to Texas’s Senate Bill 8, the “abortion bounty” law. Donatti said it’s a classic example of “judge shopping,” in which plaintiffs manufacture reasons to file a case in a court where it will be heard by a judge who can be expected to rule in their favor.
Amarillo has become a hot spot for judge shopping, and that is because of Kacsmaryk. The 45-year-old, a graduate of Abilene Christian University and the University of Texas School of Law, was appointed to the federal bench in 2019 by President Donald Trump after years of religious-right activism. Before taking his seat on the U.S. District Court of the Northern District of Texas, Kacsmaryk worked for the First Liberty Institute, in Plano, a nonprofit organization that specializes in litigation that alleges violations of religious liberties. (Perhaps most famously, in a case heard by the U.S. Supreme Court, First Liberty successfully represented a couple who owned an Oregon bakery after they refused to make a cake for a same-sex couple.) “Someone who had his prior credentials—it’s hard to imagine a period much before 2017 when he might have been confirmed,” said Stephen Vladeck, a UT law professor and a nationally prominent expert on the federal courts.
While he was deputy general counsel for First Liberty, Kacsmaryk published a 2015 article in the National Catholic Register shortly ahead of the U.S. Supreme Court’s decision in Obergefell v. Hodges, which made same-sex marriage legal across the country. Arguing against the expansion of marriage rights, the future federal judge invoked the Catholic catechism and called homosexuality “disordered.” He also took the opportunity to express his disdain for the court’s past rulings protecting access to abortion and contraception, including Roe v. Wade. In that decision, he wrote in another 2015 article, the majority “found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.”
Kacsmaryk’s opposition to reproductive rights made him the ideal arbiter of the AHM’s attempt to ban the country’s most popular abortion method. So did his history of decisions on cases brought by right-wing plaintiffs. In his brief tenure on the bench, Kacsmaryk has ordered President Biden’s administration to reinstate the Trump-era Remain in Mexico policy, which requires asylum seekers to wait outside the U.S. while their claims are being processed. He’s declared Biden’s protections for transgender workers unlawful. And he’s ruled that parental consent must be required for teenagers to access contraception.
During his first Senate hearing in 2017, Kacsmaryk swore that his background as an activist would not affect his judicial decisions. “As a judge, I’m no longer in the advocate role,” he said, going on to vow that he would consider precedents from the Supreme Court and the Fifth Circuit Court of Appeals—where appeals to his rulings would be heard—to be “binding.” In response to senators’ questions, he wrote, “I cannot think of any cases or category of cases requiring recusal on the grounds of conscience.” But if such a case did arise, he said, “I will fully and faithfully apply the law of recusal.” The only Republican who voted against confirming him in 2019, Senator Susan Collins, of Maine, didn’t buy it. She said that Kacsmaryk’s background, and his past comments on LGBTQ and reproductive rights, indicated “an inability to respect precedent and to apply the law fairly and impartially,” and that “Mr. Kacsmaryk has dismissed proponents of reproductive choice as ‘sexual revolutionaries,’ and disdainfully criticized the legal foundations of Roe v. Wade.”
Now, almost four years after he was confirmed, Kacsmaryk holds a uniquely powerful position on the federal bench. That’s because he is one of a handful of judges—most of them in Texas—who serve as sole judges for a division. In most districts around the country, cases are randomly distributed among the roster of judges, but in the Northern District of Texas, the chief judge, David Godbey—who divides up the cases—has opted to assign every case based on location. If plaintiffs file in Dallas, where there are multiple judges, they don’t know who will hear their case. In Amarillo, they are guaranteed to have their litigation heard by Kacsmaryk. Last September, Godbey, who was appointed by President George W. Bush, issued a “special order” amending the rules of the court: “The clerk of court is to assign each new case filed in the Amarillo Division to Judge Matthew Kacsmaryk.”
The rationale for this system is that plaintiffs and judges should not have to travel for hearings and trials. According to Vladeck, that’s a flimsy reason. Federal judges are routinely required to travel, he said, and that’s a small price to pay for a fairer system—one in which plaintiffs can’t pick their own judges. Judge shopping, which both liberal and conservative plaintiffs have used, has become a more pressing problem in the wake of Trump’s flood of right-wing judicial appointments during his four years in the White House. “It’s much easier,” Vladeck said, “to find a judge at one end of the ideological spectrum than it was ten or fifteen years ago.”
Lawyers, activists, and even the U.S. Department of Justice have expressed concern that Kacsmaryk has become a go-to judge for right-wing groups. While Kacsmaryk has spent the last few years hearing civil cases with broad national implications, that is not the norm for federal judges in Amarillo. His predecessor, Judge Marylou Robinson, appointed by Jimmy Carter in 1979, seldom handled litigation that garnered national political attention. She ruled on federal criminal cases filed in the Panhandle, civil cases with defendants based in Amarillo, and employment-discrimination cases against companies in the area—in Vladeck’s words, “cases with a real local flavor.”
It would be hard to find a purer example of judge shopping than the abortion-pill case, for several reasons. The lawsuit has been brought against the FDA, which is, of course, based in the Washington, D.C., area. Mifepristone cannot be prescribed in Texas because of the state’s abortion ban. And the AHM claims to represent doctors based all across the country. “It’s really easy to understand why [the suit] was filed in Amarillo,” Vladeck said. “There is no obvious factual reason for filing this in Amarillo. So there is only one compelling explanation”—the likelihood that Kacsmaryk will rule in favor of the plaintiffs.
Julie Marie Blake, a senior counsel for Alliance Defending Freedom who is a prosecuting attorney on the case, said in a telephone interview that Amarillo was an appropriate venue for the case. “The Alliance for Hippocratic Medicine has members all across the country,” she said, “including a lot of members in Texas, which is a centralized location.” She added that “a lot of the doctors in Texas are particularly active.” Three of the four doctors who are plaintiffs in the case work in California, Indiana, and Michigan, along with one from Texas: Dr. Shaun Jester, who practices in Dumas, about 45 minutes north of Amarillo. When I asked why the litigation was filed in Amarillo, rather than in another part of Texas, Blake’s colleague Donna Harrison, a doctor who’s the CEO of the Fort Wayne, Indiana–based American Association of Pro-life Obstetricians and Gynecologists, and who was also on the phone call, jumped in and said, “Why not?” Blake then reiterated: “We chose it because it’s a central location for all of our members.”
Although the AHM was incorporated in Amarillo only three months before the litigation was filed, Blake said the group has informally existed for about eight years as a “consortium” of five “partnering organizations”—anti-abortion groups based in Florida, Tennessee, Indiana, New York, and Pennsylvania. Blake said that it was only this past August that AHM got the paperwork together to incorporate in Amarillo, about a hundred yards from Judge Kacsmaryk’s chambers. While the alliance has no board or staff members listed anywhere, Harrison said that she is the chair of the board. I twice requested a list of board and staff members, and Hayden Sledge, Alliance Defending Freedom’s media relations specialist, sent me a link to the case page on the organization’s website. The page does not name the group’s board or staff members. When I asked for a list of people who work out of the Amarillo office, Sledge again sent a link to the case page.
The large stakes of Kacsmaryk’s decision have received increasingly feverish national attention as a ruling looms. If the judge orders a preliminary injunction to take mifepristone off the market, as the plaintiffs have requested, medication abortions will immediately become less effective and safe—and, at least temporarily, harder to get. Although it’s just half of the two-pill protocol that’s long been the gold standard for abortion care, mifepristone is known as the “abortion pill” because it terminates a pregnancy by blocking the body’s production of the hormone needed to keep an embryo or a fetus viable. The second pill, misoprostol, starts uterine contractions and expels the embryo or fetus. (Despite Texas’s abortion ban, misoprostol is still legal in the state because it’s also used to treat miscarriages and ulcers.) The two-pill regimen, if undertaken during the first ten weeks of pregnancy, has success rates that range from 91 to 99 percent. While misoprostol can be used alone—and often is, in places where mifepristone is inaccessible—it is only about 78 percent effective and more often has side effects such as cramping and nausea.
If Kacsmaryk orders mifepristone be pulled from the market, said Dr. Bhavik Kumar, medical director for primary and transgender care at the Houston-based Planned Parenthood Gulf Coast, “people will lose the option that is most effective.” That will be problematic for many of the Texans who travel to clinics in states where abortion is still legal. If patients take misoprostol alone and it doesn’t work, they may have to return to a clinic—if they have the time and money to do so—for either another dose of the pill or a surgical abortion. Meanwhile, the pregnancy will have progressed, making the abortion riskier. And the clinics, which have been overwhelmed since the demise of Roe v. Wade last June, will become even more congested. “It will be an immediate shock to the provision of care,” said Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights in New York. “Texans are already traveling to access care,” she said. “The idea of limiting a safe method that they can sometimes access, that’s going to have a huge impact on Texans.”
While the potential harm to pregnant individuals is clear, the lawsuit in Kacsmaryk’s court is based on a murky claim that it’s the plaintiffs—the doctors—who are being harmed every day that mifepristone remains available. Typically, such a lawsuit would be based on a patient claiming harm—an adverse reaction to the drug, say. But there are no patients involved in this suit. Instead, the doctors argue that they are harmed because they have to give their patients additional care when they have adverse reactions to mifepristone, which has been proven to be safer to take than Tylenol. “This is a case where a doctor is speculating on what caused a patient to experience particular symptoms and then, against the informed judgment of millions of other health-care professionals, is seeking to change a national policy with huge significance for reproductive health,” said the ACLU’s Donatti.
The plaintiffs cite concerns about mifepristone’s safety as the driving force behind their lawsuit, claiming that hemorrhaging and infection are common side effects of the pill. But in the FDA’s list of possible side effects—which include nausea, abdominal cramping, and headaches—hemorrhaging and infection are logged as very rare. In court documents, the FDA says the incidence of hemorrhaging on the pill is 0.1 percent, while sepsis occurs 0.01 percent of the time (infections without sepsis occur 0.2 percent of the time).
The plaintiffs’ central claim is that the FDA rushed its approval of mifepristone under pressure from the Clinton administration. In the complaint, the AHM argues that when the FDA approved mifepristone through an accelerated approval process reserved for drugs “that treat serious conditions, and fill an unmet medical need,” the agency was out of line. The plaintiffs argue that pregnancy is not an “illness,” so the drug need not have gone through accelerated approval. (The “accelerated” process, in this case, meant that mifepristone hit the market in the U.S. after more than a decade’s worth of research and clinical trials; the drug had been prescribed in the United Kingdom and France since the late 1980s and early 1990s.)
Despite the sketchy claims made in the lawsuit, it would be a surprise to observers on both sides of the abortion debate if Kacsmaryk doesn’t rule for the plaintiffs. If he grants the preliminary injunction that the AHM has asked for, the case could eventually be tried in his court. (Cases of this magnitude sometimes take years to try.) In the meantime, a defendant in the case—most likely the FDA or Danco Laboratories, which manufactures mifepristone under the brand name Mifeprex —would probably appeal the decision to the Fifth Circuit in an effort to quickly get the drug back on the market. For abortion-rights supporters, that may not exactly raise hopes; the appeals court is overwhelmingly conservative. It is packed with right-wing activist judges appointed by Trump and George W. Bush, and it has upheld Kacsmaryk’s rulings in the past. After the Fifth Circuit, the next step for the defendants would be a Supreme Court appeal to lift the injunction. That court, too, is packed with right-wing activist judges appointed by Trump and Bush.
Kacsmaryk could issue a ruling any day now; this past Friday, February 24, was his deadline for arguments to be filed supporting and opposing the injunction request. One hundred and sixty-four groups and individuals across the country, on both sides of the abortion issue, have filed amicus briefs in the case. Forty-five state governments, the District of Columbia, and 67 members of Congress—along with doctors, activists, and former patients—have offered their input in the briefs. It’s unusual for so many outside parties to chime in on a case. But in the end, it might not matter how many weigh in. It all comes down to one judge in Amarillo.