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Judge who wants to block mifepristone removed his name from anti-abortion article before Senate confirmation

US District Judge Matthew Kacsmaryk reportedly failed to disclose to lawmakers that he wrote an article defending religious objections to abortion access and gender-affirming care

Alex Woodward
New York
Saturday 15 April 2023 21:53 BST
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The federal judge presiding over a challenge to a widely used abortion drug reportedly failed to disclose to members of Congress that he authored an article attacking abortion rights and transgender healthcare in a right-wing legal journal.

US District Judge Matthew Kacsmaryk, then an attorney for an influential conservative Christian legal group, removed his name from the article before a judicial nomination process under then-President Donald Trump, according to The Washington Post.

By removing his name from the article, which defends doctors who “cannot use their scalpels to make female what God created male” on religious grounds, the article did not come up during his testimony to the US Senate, which ultimately approved his appointment to the federal bench in 2019.

On 7 April, Judge Kacsmaryk ruled in favour of an anti-abortion activist group challenging the US Food and Drug Administration’s 23-year-old approval of mifepristone, part of a two-drug medication abortion protocol used in more than half of all abortions in the US.

Eliminating access to the drug, which has overwhelmingly found to be safe and effective, would threaten access to abortion for millions of Americans already facing severe restrictions to abortion care after the US Supreme Court struck down the constitutional right to abortion affirmed in the landmark ruling in Roe v Wade.

On 14 April, the Supreme Court temporarily put the judge’s ruling on hold following an emergency appeal from President Joe Biden’s administration. A full order on the ruling is expected some time next week.

According to emails and documents reviewed by The Washington Post, Mr Kacsmaryk asked for his name to be removed from the article in the Texas Review of Law and Politics in 2017, months after submitting a draft, for “reasons I may discuss at a later date.”

He offered that two coworkers at the First Liberty Institute where he worked be listed as the authors instead.

The article was not disclosed in a questionnaire submitted to the Senate Judiciary Committee, which requires all judicial nominees to list all of their published work.

A draft was submitted in early 2017. He was interviewed by members of the Federal Judicial Evaluation Committee in March, then met with at least two senators, Ted Cruz and John Cornyn, both Republicans, in April, according to The Post’s timeline.

One week later, and one month before meeting the White House about his nomination, he told his editor that his name would be replaced with two others’. A spokesperson for First Liberty Institute told The Post that Mr Kacsmaryk was never the original author but declined to share messages relating to the article.

Mr Kacsmaryk – who has called homosexuality “disordered” and referred to being transgender as “delusional” – was openly critical of same-sex marriage and transgender rights while working as First Liberty’s deputy general counsel.

Democratic lawmakers and LGBT+ and abortion rights advocates roundly criticised then-President Trump’s appointment of Mr Kacsmaryk to the federal judiciary. He was confirmed in the Senate in 2019 by a vote of 52-46. Only one Republican senator, Susan Collins, joined all Democrats to vote against his confirmation.

Mr Kacsmaryk’s ruling in the mifepristone case uses language from anti-abortion activists, including referring to abortion providers as “abortionists”, abortion patients as “post-abortive women,” and a fetus as an “unborn human”.

Abortion rights advocates and civil rights legal groups were stunned by both his ruling and a federal appeals court ruling that maintained parts of Mr Kacsmaryk’s decision, which critics say is “unmoored” by both the law and science, including decades of research and guidance from major medical and public health organisations.

Critics have lambasted both rulings for relying on anecdotal reporting provided by the group that filed the lawsuit challenging the FDA’s approval.

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