Why judge in abortion pill lawsuit scheduled a hearing but delayed telling the public

ByPerry Stein, Ann E. Marimow, and Caroline Kitchener, The Washington Post
Monday, March 13, 2023
Texas man suing friends of ex-wife for helping supply abortion pills
Federal Judge Matthew Kacsmaryk wanted to minimize protests and threats in connection with the closely-watched case, people familiar with the plan said.

The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.

The video above is from a related story.

The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time.

Kacsmaryk scheduled the hearing during a call with attorneys Friday, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Kacsmaryk said he would delay putting the hearing on the public docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.

SEE RELATED STORY: Dozens of states wade into legal fight on abortion pill access

Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk's apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening.

The lawsuit seeks to revoke Food and Drug Administration approval of mifepristone, one of two drugs used in a medication abortion. The case has garnered widespread attention and protests.

A decision by Kacsmaryk to suspend FDA approval of mifepristone would immediately prompt major changes in how many abortion clinics across the country provide care. Some are planning to immediately switch to a misoprostol-only protocol, while others are planning to offer only surgical abortions. Any decision would likely be appealed to the conservative U.S. Court of Appeals for the 5th Circuit, and possibly to the Supreme Court.

Attorneys on the planning call with Kacsmaryk on Friday included representatives from the Alliance Defending Freedom, which filed the lawsuit; the Justice Department, which represents the FDA; and the drug company that makes mifepristone. Representatives for each declined to comment or did not immediately respond to requests for comment on Saturday evening.

Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling.

Before and after the Friday phone call with lawyers, The Washington Post repeatedly called and emailed Kacsmaryk's chambers seeking information about it, but received no response. Kacsmaryk's chambers also did not respond to a request that reporters be allowed to join the call.

Kacsmaryk was nominated by President Donald Trump and is known for his conservative views on issues like same-sex marriage and abortion.

By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo. The remote, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state's major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.

Alliance Defending Freedom filed the lawsuit in November on behalf of four antiabortion medical organizations and four doctors who say they have treated patients with mifepristone.

The FDA has repeatedly deemed the two-step medication abortion protocol to be safe and effective. But the lawsuit argues that the regulatory agency never should have approved mifepristone back in 2000, claiming the government purposely ignored what the plaintiffs contend are harmful side effects.

Leading organizations of physicians and other public health professionals have strongly disputed those allegations and have told Kacsmaryk that reversing FDA approval of mifepristone would "cause profound and irreparable harm to patients across the country."

Medication abortions with mifepristone - which account for more than half of the abortions performed in the United States each year - have "an exceptionally low rate of complications," according to their brief.

A patient first takes one mifepristone pill, which blocks the hormone progesterone, preventing a pregnancy from progressing. About 24 hours later, the patient typically takes a four-pill dose of misoprostol, a drug introduced in 1973 to treat stomach ulcers, to soften the cervix and prompt contractions that expel the embryo or fetus.

The two-step procedure is standard in the United States and is approved as safe for the first 10 weeks of gestation, which begins on the first day of a person's last menstrual cycle. (The World Health Organization says medication abortion is safe in the first 12 weeks of pregnancy.)

It is also possible to terminate a pregnancy using just misoprostol, a procedure that requires three doses of four pills each. While misoprostol is widely used on its own to perform abortions around the world, studies show it is less effective than the two-step regimen, and usually causes more cramping and bleeding.

Since the Supreme Court overturned Roe v. Wade last summer, eliminating a person's constitutional right to terminate a pregnancy and triggering abortion bans in more than a dozen states, many antiabortion advocates have focused on trying to limit the availability of medication abortions, even in states where the procedure is legal.

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