Judge in abortion pill case substituted other names on controversial article before nomination to bench

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Judge Kacsmaryk headshot

U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas. Photo from the Northern District of Texas website.

A Texas federal judge who ruled against the government in an abortion pill case withdrew his name from a controversial law review article before his nomination to the bench.

The Washington Post has the story on U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas, who reportedly told an editor at the Texas Review of Law and Politics in an email that he would be withdrawing his name for “reasons I may discuss at a later date.” The Washington Post reviewed the email and spoke with the editor, who did not want to be identified.

Kacsmaryk, who was the deputy general counsel at the First Liberty Institute, a group that litigates religious liberty cases, substituted the names of two colleagues at the group. He did not list the article in his U.S. Senate questionnaire.

The article addressed issues of abortion and transgender medical protections.

Hiram Sasser, a spokesperson for the First Liberty Institute, told the Washington Post that Kacsmaryk did not make a “substantive contribution” to the article, and his name was as a “placeholder.” Sasser later provided the Washington Post with an email showing that Stephanie Taub, one of the colleagues eventually listed as an author, had been involved in writing an early draft.

At the time, the editor-in-chief of the Texas Review of Law and Politics was Aaron Reitz. He agreed that Kacsmaryk’s name had been a “placeholder until final authors were named by First Liberty.”

But the anonymous editor said this was the only time that author names were changed during the editor’s time at the law review.

The law review article opposed a 2016 rule by the U.S. Department of Health and Human Services that said doctors can’t discriminate against patients who seek gender-affirming care or termination of their pregnancies. The article, called “The Jurisprudence of the Body,” argued that the rule should include a “conscientious objector” exception for physicians.

Kacsmaryk ruled April 7 that the U.S. Food and Drug Administration violated its statutory duty to consider safety concerns when it approved the abortion pill mifepristone in 2000. U.S. Supreme Court Justice Samuel Alito put that decision on hold while the Supreme Court considers the federal government’s request to block Kacsmaryk’s decision during litigation. The plaintiffs are organizations of anti-abortion doctors.

See also:

ABAJournal.com: “Why the 5th Circuit is allowing abortion pill sales but pausing expanded access to the drug”

ABAJournal.com: “Can court ban abortion pill? Federal judge considers authority, plaintiffs’ standing”

ABAJournal.com: “Meet the Texas judge who is a favorite of conservatives in hot-button lawsuits, including abortion-pill litigation”

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