A key battle over the Food and Drug Administration’s approval of the abortion pill mifepristone has prompted fresh accusations of “judge shopping” by plaintiffs seeking a favorable audience for their litigation.
The legal battle over the abortion pill has largely played out in Amarillo, Texas, home to a federal court division with only one district judge, Matthew Kacsmaryk.
Kacsmaryk, who was appointed to the federal bench by former President Donald Trump in 2019, previously worked for the Christian conservative legal group First Liberty Institute and has embraced a socially conservative view on LGBTQ rights and abortion.
By filing the lawsuit in Amarillo, the cadre of anti-abortion groups seeking to overturn FDA approval of the nearly guaranteed drug Kacsmaryk will have their case heard. Critics accused the plaintiffs of targeting Kacsmaryk to lead the case because he was seen as more sympathetic to their arguments that the drug, approved in 2000, has 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 legal group representing some of the plaintiffs — “you want someone like [Kacsmaryk] because your odds are going to be better,” he said.
The Amarillo court did not immediately respond to CNBC’s request for comment.
The strategy of targeting single-judge divisions undermines the perception of judicial fairness, critics say. They argue that the plaintiffs are bypassing the standard process of cases being assigned at random — which is primarily intended to “avoid judge shopping,” as a federal court explains.
Kacsmaryk on Friday suspended the approval of mifepristone, while 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 issue could go up to the US Supreme Court, which has a 6-3 conservative majority.
A decision on the legal status of the pill will have far-reaching implications across the country, including in states where abortion remains legal after the Supreme Court’s decision to overturn Roe v. Wade last year. Medication abortion is the most common procedure in the US
An attorney for one of the plaintiffs denied accusations of judge shopping.
“We are very confident that any judge who looks at the FDA regulations and what the FDA actually did will rule for us,” said Denise Harle, senior counsel for the Alliance Defending Freedom. Fox News in February. “That’s what we’re looking for, just a fair trial, fair opportunity to make our arguments to the court.”
Harle also told Fox that the Alliance for Hippocratic Medicine, a group of anti-abortion doctors represented by the Alliance Defending Freedom, is based in Amarillo.
But Kacsmaryk’s courthouse has news become a preferred destination for conservative legal causes. The judge has repeatedly sided with challenges to the Biden administration’s policies.
Other judges have made similar accusations. Trump has been accused by the judge of shopping for Florida federal Judge Aileen Cannon, whom he appointed, when she filed a sweeping lawsuit in 2022 against his former political rival Hillary Clinton in Cannon’s division.
Instead, that case was assigned to Judge Donald Middlebrooks, an appointee of former President Bill Clinton. Middlebrooks dismissed it.
But Cannon was randomly assigned to another Trump case a few months later, this one asking a judge to appoint a “special master” to review government documents seized by the FBI in a raid on the former president’s Mar-a-Lago resort home in August. Cannon granted Trump’s request, surprisingly some legal experts at the time.
It is not new for litigants to try to have their cases heard in the most favorable environment. The approach isn’t partisan, either: Ziegler noted that a 2017 challenge to President Trump’s controversial travel ban was filed in Hawaii.
This kind of forum shopping is “always kind of an imperfect proxy” for those looking for a sympathetic judge, Ziegler said. He noted that there are progressive judges in conservative states and vice versa.
But by filing a case in a single-judge division, a plaintiff can more easily target a particular judge.
Constitutional law expert Steve Vladeck wrote in February, “Of the 27 divisions in the four district courts of Texas, nine have a single judge; 10 others have only two.”
In a separate case brought against Kacsmaryk this year, the Justice Department requested a transfer to another federal court, arguing that the Amarillo court’s “forum shop” decision “undermines public confidence in the administration of justice” because the court “has no connection whatsoever to this dispute.” Kacsmaryk rejected that request.
Another DOJ short in February selected Texas Attorney General Ken Paxton, accusing the Republican official of filing 18 of his 28 lawsuits against the Biden administration in single judge divisions. Paxton’s office defended its decisions on where to file its cases, saying CNN last month that the Biden administration’s accusations risked “undermining public confidence in the legal system.”
Ziegler expressed the view that even the appearance of judge shopping can undermine trust in the courts.
“When the public knows that you can dictate an outcome by choosing a judge, it is really difficult to convince the public that the courts are legitimate,” he said.
