Analysis-Abortion pill lawsuit faces Texas judge who often rules for conservatives

2/2 © Reuters. FILE PHOTO: A pill of Misoprostol, used to terminate early pregnancies, is pictured in this illustration taken June 20, 2022. REUTERS/Edgard Garrido/Illustration 2/2

By Nate Raymond

(Reuters) - A challenge to the U.S. government's approval of a pill used for abortions is one of the latest high-profile lawsuits to be filed by conservative advocates in a Texas court that essentially guarantees them a sympathetic judge, a one-time Christian activist.

Anti-abortion groups seeking a nationwide ban on the pill sued the Biden administration in November in Amarillo, where a local order assigns 95% of federal civil cases to the lone U.S. district judge there, Matthew Kacsmaryk, an appointee of former Republican President Donald Trump.

Kacsmaryk previously served as deputy general counsel for First Liberty Institute, a Christian conservative legal group that pursues religious-liberty cases, including those he said aimed to "defend unborn human life."

A standing order allows litigants in his court to avoid the typical U.S. system of randomly drawing a judge from a federal district that includes multiple judges.

"It's judge shopping on steroids," said Sarah Lipton-Lubet, executive director of the progressive legal advocacy group Take Back the Court.

Kacsmaryk, whose courthouse has become a favored destination for Republicans seeking to challenge aspects of Democratic President Joe Biden's agenda, could not be reached for comment.

Since October, Kacsmaryk has blocked an end to Trump's "Remain in Mexico" immigration program and ruled against Biden administration policies designed to protect LGBTQ people from discrimination in the workplace and doctors' offices.

    He has also ruled for birth control foes, holding in December that allowing minors to obtain free contraception though the Title X federal program without parental consent was unlawful.

'SUED WHERE INJURED'

The non-profit Alliance for Hippocratic Medicine, which brought the lawsuit along with other anti-abortion medical groups, was incorporated in Texas three months before suing, allowing it to claim residency in Amarillo.

A local doctor, who is also a plaintiff, claims he treated a woman who had complications when using the abortion drug.

Julie Blake, an attorney for the plaintiffs at Alliance Defending Freedom, said that doctor, Shaun Jester, contacted her conservative Christian legal organization to help mount a case.

Blake said her clients had every right to sue in Amarillo. "Congress created rules that allow people to be sued where injured," she said.

The lawsuit alleges the U.S. Food and Drug Administration in 2000 exceeded its authority by approving mifepristone, which is used in combination with misoprostol for medication abortions up until the 10th week of pregnancy.

Medication abortion, which accounts for more than half of U.S. abortions, has been in the spotlight since the U.S. Supreme Court last June reversed its landmark Roe v. Wade ruling, ending guaranteed abortion rights nationwide.

The Biden administration has called the lawsuit "unprecedented" and urged Kacsmaryk to not deprive women of a long-approved safe and effective drug.

Kacsmaryk is expected to decide whether to hold a preliminary hearing or skip directly to a full trial on the merits.

LONG LIST OF LAWSUITS

The case joins a long list of lawsuits seeking to shut down executive branch policies by asking a lone federal court judge for a nationwide injunction, a practice U.S. Supreme Court justices and lawmakers have criticized but not halted.

Liberal litigants have increasingly filed bids for nationwide injunctions in venues they perceive as friendly to their cause. During Trump's era, they often filed in the Northern District of California, which covers San Francisco.

Kacsmaryk's court is part of the Northern District of Texas, one of 94 federal judicial districts, which has 12 active judges and also covers Dallas, Fort Worth and other cities. Like some other large federal districts, it is subdivided into smaller "divisions," though most have more than one judge.

The goal of small subdivisions, legal experts said, to is ensure people do not have to travel too far when they are in federal litigation, particularly in Texas, the second largest state.

Republican Texas Attorney General Ken Paxton has sued at least eight times over Biden policies in Kacsmaryk's court, along with 14 other such cases in Victoria, Galveston and Lubbock, all with a single Trump-appointed judge hearing most cases, according to Steve Vladeck, a professor at the University of Texas at Austin School of Law.

At least eight have led to rulings blocking Biden policies, with several more pending. Appeals go the New Orleans-based 5th U.S. Circuit Court of Appeals, whose Republican-appointed majority routinely issues rulings favoring conservative causes.

Vladeck said such "judge shopping" was an "indefensible practice." The chief judges of Texas federal courts have the authority to reallocate cases to other judges, but have largely not done so, he said.

The strategy has frustrated the U.S. Justice Department.

Although it has not contested the venue choice in the abortion pill lawsuit, it recently asked for a change of venue in another case before Kacsmaryk. The judge has yet to decide the issue in that case, in which Paxton and other Republican state attorneys general challenged a rule allowing retirement plans to consider environmental, social and governance factors when making investments.

Josh Blackman, a conservative law professor at South Texas College of Law who knows Kacsmaryk, said Congress was to blame for any judge shopping, since the courts are structured by statute. Absent a change, litigants have every right to take advantage of that structure to seek a favorable judge, he said.

"You're selling your client short if you don't pick the best forum," he said.