Judge That Ruled Against FDA-Approved Abortion Pill Hid Controversial Article From Senate

The Trump-appointed judge that ruled last week that the FDA’s approval of an abortion pill drug was unconstitutional reportedly concealed a transphobic and anti-abortion article from the Senate that he helped produce, The Washington Post reported.

District Judge Matthew Kacsmaryk’s ruling against mifepristone — the abortion pill the FDA approved in 2000 that accounts for roughly 60% of all abortions in the country — relied heavily on anti-choice rhetoric and baseless claims. Kacsmaryk, 46, was appointed as a lifetime federal judge by the Senate in 2019 by a vote of 52-46 after being nominated by former President Donald Trump, but critics have vocalized their concerns about his anti-LGBTQ and anti-reproductive rights stances since before his appointment.

The 13-page article that had Kacsmaryk’s byline during the drafting process was featured in the 21st volume of the “Texas Review of Law & Politics” in 2017 and is titled “The Jurisprudence Of The Body: Conscience Rights In The Use Of The Sword, Scalpel, And Syringe.”

Rep. Ted Lieu (D-CA) called for Kacsmaryk’s resignation in multiple tweets over the weekend. 

“Why did Judge Kacsmaryk mislead the American people during his confirmation hearing about his abortion views? Because he knew he wouldn’t be confirmed if people found out he was a religious zealot,” he wrote in a Saturday tweet.

He added: “Judge Kacsmaryk made a mockery of the confirmation process and must resign.

According to the article, the United States Department of Health and Human Services rule barring discrimination against patients seeking gender-affirming care or abortions “did not provide a safe harbor” for physicians of various religions “who cannot use their scalpels to make female what God created male, cannot use their syringes to feminize biological males or masculinize biological females, and cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.” 

In this image from video from the Senate Judiciary Committee, Matthew Kacsmaryk listens during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, on Dec. 13, 2017. Kacsmaryk, a Texas judge who sparked a legal firestorm with an unprecedented ruling halting approval of the nation’s most common method of abortion, Friday, April 7, 2023, is a former attorney for a religious liberty legal group with a long history pushing conservative causes. (Senate Judiciary Committee via AP)

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But Kacsmaryk was removed as the author and his name was replaced with the names of two others — Justin E. Butterfield and Stephanie N. Taub — after he sent an email to the then-editor of the journal asking for the switch before it was published, according to The Post. In the email, Kacsmaryk cited “reasons I may discuss at a later date.”

As part of the appointment process, nominees are required to submit their written and edited work to the Senate Judiciary Committee. But Kacsmaryk failed to include the 2017 piece, The Post claims, prompting ethical concerns and questions about his ability to be impartial as a judge.

Hiram Sasser, a spokesperson for First Liberty Institute, a Christian non-profit legal organization that Kacsmaryk, Butterfield, and Taub were part of, told The Post that Kacsmaryk’s name on the article was used as a “placeholder” and that he did not provide a “substantive contribution” to the piece.

Sasser told HuffPost that Kacsmaryk “was intending to write an article and he just didn’t have the time to get to it. So someone else wrote it and the correct people’s names appeared on the article.”

Sasser continued: “I’m fairly certain that he provided some kind of edits.”

But the Senate Judiciary Committee even requests pieces that were edited by the nominees.

When asked by HuffPost why Kacsmaryk didn’t even discuss his editing role, Sasser added: “I think it’s probably because the only edits that he provided were maybe some grammar edits or something. I don’t know. Maybe he didn’t, didn’t edit it at all. I have no idea. I have no evidence at all.” (An email shared with The Post confirms that Kacsmaryk did provide at least one minor edit.)

Sasser also claimed that the article wasn’t published until after the names were swapped.

Still, an anonymous source said that the “placeholder” action was not specified beforehand and that the author swap had never happened while they were an editor at the journal.

HuffPost also reached out to the Senate Judiciary Committee for information on the next steps, but no response has been received. Kacsmaryk also did not respond to HuffPost’s request for comment.

Trump nominated over 200 conservatives like Kacsmaryk to lifetime judgeships, making a substantial impact on the federal judiciary. With the wave of anti-LGBTQ and anti-abortion legislation stemming from the right, community members and advocates of pro-LGBTQ have voiced concern for the country’s progress and freedom.

“What we have in Texas is a judge who is not guided by science, but is part of an extreme Republican concerted effort to ban abortion nationwide,” Sen. Tammy Baldwin (D-WI) said about Kacsmaryk to NBC News’ “Meet The Press” on Sunday.

“And we do not need judges, politicians or government telling women about what sort of health care they can have,” she added.

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