How the judge who could ban the abortion pill won confirmation in the U.S. Senate

Caption

The FDA approved mifepristone under the brand-name Mifeprex in 2000, and an abortion-drug regimen that has seen few deaths and a low rate of adverse events in more than two decades of use.

Credit: AP Photo/Allen G. Breed, File

WASHINGTON — The U.S. District Court judge who could end more than two decades of legal access to medication abortion underwent extensive questioning about LGBTQ equality at his December 2017 confirmation hearing — and very little about his views on abortion.

Matthew Joseph Kacsmaryk, appointed by former President Donald Trump earlier in 2017, spent much of his contentious Senate Judiciary Committee confirmation hearing explaining work he’d done at a conservative religious liberty legal organization.

As the deputy general counsel for the First Liberty Institute since 2014, he had written extensively about same-sex marriage and other subjects.

Kacsmaryk told the panel the First Liberty Institute “is the largest national legal organization dedicated to restoring religious freedom for all Americans, with a heavy emphasis on all,” in response to a question about the organization from Iowa GOP Sen. Chuck Grassley.

Kacsmaryk testified he “primarily focused on conscience litigation,” during his time there. But Democratic senators on the committee were skeptical Kacsmaryk would be able to rule impartially as a judge.

Connecticut Democratic Sen. Richard Blumenthal challenged Kacsmaryk for writing a 2015 brief to the U.S. Supreme Court in which he argued that recognizing a constitutional right to same-sex marriage would lead the country on a “road to potential tyranny.”

Kacsmaryk testified that as part of his job representing several religious organizations, he was making a point about free speech and the “importance of protecting religious dissenters.”

In the end, Maine Sen. Susan Collins was the sole Republican to join Democrats in their opposition to the confirmation, arguing that Kacsmaryk was too “extreme” to sit on the bench. The Senate voted 52-46 in June 2019 to confirm him to the Northern District of Texas.

It was three years before a U.S. Supreme Court that had become dominated by conservatives would overturn the constitutional right to abortion, throwing the issue back to states, some of which have responded by instituting bans.

Other states have kept abortion legal, but their residents could have access to abortion medication overturned or limited by a Kacsmaryk ruling in the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, expected any day.

 

Vetted by Cruz, Cornyn

Kacsmaryk was born in 1977 in Gainesville, Florida, though he grew up in Texas.

He graduated from Abilene Christian University in 1999 before going on to earn his law degree from the University of Texas School of Law in 2003, according to the questionnaire he submitted to the Senate Judiciary Committee.

Kacsmaryk worked as an associate at Baker Botts LLP in Dallas from 2003 through 2008, before becoming an assistant United States attorney for the North District of Texas.

After two years at the U.S. Attorney’s Office Dallas division, he moved to the Fort Worth division from 2010 through 2013. Kacsmaryk then spent a semester as an adjunct professor at Southern Methodist University’s Meadows School for the Arts in Dallas before becoming deputy general counsel for the First Liberty Institute in 2014.

In February 2017, he sent an application to a committee that Texas Republican Sens. John Cornyn and Ted Cruz established to vet potential nominees to the federal bench in their home state.

Members of the committee, known as the Federal Judicial Evaluation Committee, interviewed Kacsmaryk in March 2017 before the two senators interviewed him in April in Washington, D.C.

By the end of May 2017, the White House Counsel’s Office and the Office of Legal Policy of the Department of Justice were interviewing Kacsmaryk. Then Trump nominated him in September.

Cornyn said during the confirmation hearing that he was confident Kacsmaryk “will serve the people of Texas while on the bench by faithfully applying the law, no matter who the litigants are, where they come from or what their station in life is.”

Cruz noted that President Barack Obama’s first attorney general, Eric Holder, had recognized Kacsmaryk with the attorney general’s award for excellence in furthering the interests of U.S. national security for a case that involved the prosecution of a terrorist, who received life in prison following a jury trial.

Kacsmaryk volunteered for several Republican campaigns before his nomination, including for Cornyn and Cruz. But he made donations exclusively to Cruz, according to filings with the Federal Election Commission.

Kacsmaryk donated $500 to Cruz’s Senate campaign in 2012, $500 to his Jobs, Growth & Freedom Fund leadership PAC in 2014, $500 to the Ted Cruz Victory Committee PAC in 2014 and $1,000 to Cruz for President in 2015.

Kacsmaryk was also a co-founder in 2012 of The Federalist Society’s Fort Worth Lawyers Chapter and served as vice president and programs director. The society, founded in 1982, describes itself in part as “a group of conservatives and libertarians interested in the current state of the legal order.”

He has remained active. Even as he awaited a final brief in the abortion medication case, Kacsmaryk spoke to The Federalist Society’s New Orleans Lawyers Chapter on Feb. 24, according to a post on the society website.

In other society activities, he was part of a deep dive into the criminal justice system in March 2022, was part of a virtual panel addressing sex and gender issues in February 2022 and appeared on a panel on religious freedom in January 2021. There are no videotapes, audiotapes or transcripts of his remarks on the Federalist Society website.

 

Senate hearing

At his confirmation hearing, his work at First Liberty Institute in connection with the group’s opposition to the legality of same-sex marriage drew intense scrutiny from Democrats.

Delaware Democratic Sen. Chris Coons questioned why Kacsmaryk “asserted that the recognition of same-sex marriage would cast into disarray family values and put children at risk.”

Coons contended that, in his experience, “same-sex couples are fully capable of providing loving and stable homes to children” and asked Kacsmaryk what evidence he could show “that recognition of same-sex marriage harms children or diminishes family values?”

Kacsmaryk said he didn’t remember making that specific argument, but noted he has represented numerous faith-based adoption and foster care agencies.

“It is my experience as their counsel that they’re willing to have all hands on deck, especially in Texas where we have an adoption/foster crisis,” Kacsmaryk said. “Faith-based agencies, who may have a different definition of marriage or faith tradition, they acknowledge your point that we need all hands on deck in child welfare.”

When Coons asked if it would be a mischaracterization of Kacsmaryk’s views to say that somehow same-sex couples are not capable of being loving and supportive parents, Kacsmaryk replied that it would be a mischaracterization.

Illinois Democratic Sen. Dick Durbin asked about a 2015 piece where Kacsmaryk wrote about the Equality Act, a bill introduced in Congress that would have added sexual orientation and gender identity to the list of federally protected classes.

In the piece, Kacsmaryk laid out his view for how the LGBTQ rights movement was more like the sexual revolution than the civil rights movement.

The sexual revolution, Kacsmaryk wrote, “was rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially ‘radical’ in its demands.”

“It 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,” Kacsmaryk wrote. “In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.”

The conclusion of that article, Kacsmaryk said during his confirmation hearing, was “that legislators and policymakers must balance constitutional rights — both the right to same-sex marriage and religious liberty.”

In that writing, Kacsmaryk compared Supreme Court justices establishing a constitutional right to same-sex marriage to the 1973 Roe v. Wade ruling, which established a constitutional right to abortion.

“On January 22, 1973, seven justices of the Supreme Court 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 wrote.

“But Roe did not resolve the fierce controversy of abortion,” Kacsmaryk continued. “Instead, sexual revolutionaries suffered loss after loss when they rammed Roe into state and municipal policies restricting public funds or forced participation in the ‘fundamental right’ of abortion.”

Kacsmaryk argued that supporters of marriage equality would face similar challenges to attempts to pass LGBTQ equality legislation in the last years of the Obama presidency, writing “the post-Obergefell trajectory will probably look less like a two-year dash to the finish line and more like the ‘protracted’ timeline of post-Roe litigation and legislation.”

“That is, the new ‘fundamental right’ to same-sex marriage will be made to coexist alongside meaningful exceptions for religious dissenters,” he wrote, referencing the 2015 U.S. Supreme Court decision.

 

Confirmation debate

Kacsmaryk’s confirmation process stalled out following his December 2017 hearing before the Senate Judiciary Committee, but debate began again when Republicans moved his nomination to the floor in June 2019.

Democrats predominantly focused on Kacsmaryk’s past statements about LGBTQ rights during floor debate on his nomination, though some senators expressed concern about whether he could be impartial on cases addressing access to birth control and abortion.

“The Trump-Pence administration has taken every opportunity to undermine women’s health and reproductive rights,” Sen. Patty Murray, a Washington Democrat, said during floor debate.

“And we have seen far right Republicans across the country joining them, from state legislators working to pass extreme, harmful abortion restrictions to Republicans here in D.C. working to jam through extreme, harmful judicial nominees, like Mr. Kacsmaryk, who they hope will uphold blatantly unconstitutional restrictions on women’s rights to safe, legal abortion and ultimately take away that right by overturning Roe v. Wade,” Murray added.

Maine’s Collins, the sole Republican to vote against Kacsmaryk, in a statement criticized his views.

“Mr. Kacsmaryk has dismissed proponents of reproductive choice as ‘sexual revolutionaries,’ and disdainfully criticized the legal foundations of Roe v. Wade,” Collins said in a statement to Roll Call. “Such extreme statements reflect poorly on Mr. Kacsmaryk’s temperament and suggest an inability to respect precedent and to apply the law fairly and impartially.”

 

Immigration, birth control rulings

As a district judge, Kacsmaryk hasn’t issued many nationwide rulings, but has gained attention for his decisions on an immigration case and birth control access for minors.

Kacsmaryk wrote in his birth control ruling in early December that the federal government’s family planning grant program, known as Title X, “violates the constitutional right of parents to direct the upbringing of their children and Texas Family Code.”

The case, Deanda v. Becerra, began in 2020 when Alexander R. Deanda sued the U.S. Health and Human Services Department, which administers the family planning program.

Deanda argued the program infringed on his parental rights to raise “his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.”

Because the federal family planning grants program didn’t explicitly require providers to inform parents if their minor children seek birth control or other family planning health care services, Deanda argued it violated his rights under the U.S. Constitution and a Texas law.

The federal government has appealed the Kacsmaryk ruling, which sided with Deanda.

Kacsmaryk made headlines again in late December when for a second time he blocked the Biden administration from ending the “Remain in Mexico” immigration policy that required some immigrants seeking asylum to remain in that country while waiting for their hearing.

The ruling followed the U.S. Supreme Court issuing an opinion in June 2022 that the Biden administration could end the program.

The justices, however, sent the issue back to Kacsmaryk’s district court, where he was tasked with deciding whether a follow-up memo from the U.S. Department of Homeland Security was in line with the Administrative Procedure Act.

Kacsmaryk argued the October 2021 DHS memo on winding down the “Remain in Mexico” policy was not, writing the federal government’s attempts to end the policy were done in an “arbitrary and capricious way.”

This story comes to GPB through a reporting partnership with Georgia Recorder.