The Texas judge who could take down the abortion pill

Almost sixteen years later, in 2016, Kacsmaryk drove back to Abilene for his first meeting as a board member of Christian Homes and Family Services, the organization that had taken in his sister when she chose adoption over abortion.

“He’s very passionate about the fact that you can’t preach pro-life and do nothing,” said Kacsmaryk’s sister, Jennifer Griffith. “We both hold the stance of you have to do something. You can’t not.”

Now 45 and a federal judge, Kacsmaryk (kaz-MARE-ik) has the opportunity to impose the most far-reaching limit on abortion access since the Supreme Court overturned Roe v. Wade in June.

The judge, nominated by President Trump and confirmed in 2019, will soon rule on a lawsuit seeking to revoke U.S. government approval of mifepristone, a key abortion medication. That outcome could, at least temporarily, halt over half the legal abortions carried out across the country, including in states led by Democrats where abortion rights are protected.

While many experts have said the case relies on baseless medical claims, it is Kacsmaryk’s role as presiding judge that has the abortion rights movement bracing for another crippling defeat.

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The abortion pills lawsuit, which Kacsmaryk could rule on any day, is the latest in a long line of politically explosive cases to appear on the judge’s docket. In a practice known as “forum shopping,” conservative groups have zeroed in on the Amarillo division of the Northern District of Texas as a go-to place to challenge a wide range of Biden administration policies. Because Amarillo is a federal district with a single judge, plaintiffs know their arguments will be heard by Kacsmaryk — who, like any federal judge, is positioned to issue rulings with nationwide implications.

Appeals from Kacsmaryk’s district follow a path that has regularly yielded favorable outcomes for conservatives — reviewed first by the U.S. Court of Appeals for the 5th Circuit, which upheld a strict Texas abortion ban long before Roe v. Wade was overturned, then ultimately by the conservative-controlled Supreme Court.

Kacsmaryk, who ascended to the federal bench from the conservative legal group First Liberty Institute, has defended his ability to be impartial in his work as a judge. Nonetheless, many of his recent decisions have been wins for the right, including one that struck down new Biden administration protections for transgender people and another that forced thousands of asylum seekers to return to Mexico while they awaited processing.

(Kacsmaryk is also presiding over a lawsuit filed by anti-vaccine activists led by Robert F. Kennedy Jr. accusing several media outlets, including The Washington Post, of colluding to censor their views on coronavirus vaccines.)

Lawyers for the Alliance Defending Freedom, the law firm behind the abortion pills case, would not say whether Kacsmaryk’s presence impacted their decision to file in Amarillo. But other conservative lawyers say it makes sense to bring cases before Kacsmaryk, whom they describe as a “textualist” who adheres closely to the text of the law and the constitution — an interpretive approach that can lend itself to conservative outcomes on issues like abortion.

Liberal advocates accuse Kacsmaryk of making decisions based on personal ideology rather than the law.

“The evidence does not suggest he is a textualist,” said Rachel O’Leary Carmona, the executive director of the Women’s March, who lives in Amarillo and led a protest ahead of Kacsmaryk’s ruling on abortion pills. “The evidence suggests that he is an activist.”

When Kacsmaryk appeared before the Senate in 2017, he vowed to be fair.

“As a judge, I’m no longer in the advocate role,” he said. “I’m in the role of reading and applying with all good faith whatever Supreme Court and 5th Circuit precedent is binding.”

Many close to Kacsmaryk say he would not allow his own opinions to affect his legal judgments.

“He has never struck me as someone who is out there to remake the world or to remake the law in his own way from the bench,” said Ephraim Wernick, a former federal prosecutor and Kacsmaryk’s law school classmate and friend. “I would never expect him to impose his personal beliefs on others.”

Still, Griffith, Kacsmaryk’s sister, said she is glad her brother will be the one deciding whether to ban the country’s most common form of abortion care.

“I feel like he was made for this,” said Griffith, who remains staunchly opposed to abortion. “He is exactly where he needs to be.”

When Kacsmaryk left home at age 18, he drove 2½ hours from Fort Worth to Abilene Christian University — a deeply conservative campus known for its Bible major and mandatory daily chapel. He joined 3,000 of his peers every day at 11 a.m. as they filed into the basketball arena, coming together in prayer and four-part harmony.

On a campus just miles away from the maternity home where his sister would a few years later seek refuge, Kacsmaryk soon became a leader of the College Republicans. He was outspoken about his conservative beliefs from the start, several friends and professors recalled.

A few months into his freshman year, he wrote a letter to the editor of the student newspaper about abortion.

“The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the moral ambivalence undergirding this party,” Kacsmaryk wrote, endorsing a Republican Party platform that would grant a fetus the full legal protections of a person.

Democrats, he added, had “facilitated the demise of America’s Christian heritage” and mounted a “contemptuous assault on the traditional family.”

Faith was the “driving force and line” for Kacsmaryk growing up, said Griffith. Raised by two born-again Christians in the suburbs of Fort Worth, Kacsmaryk and his two sisters attended the West Freeway Church of Christ, part of a group of Christian churches that emphasizes the importance of biblical scripture. The West Freeway community permeated every aspect of their lives, Griffith said, their childhood schedules crowded with youth camps and ski trips with fellow church members.

The kids all learned early that abortion was wrong.

“It was known, kind of like my faith,” Griffith said.

Their mother, Dorothy, a microbiologist, was particularly passionate about antiabortion issues, Griffith said. Once she joined the Church of Christ in Fort Worth and decided to stay home with her children, Griffith said, she started questioning much of what she learned as a scientist, especially that a fetus was “just a clump of cells.” She worked with nearby crisis pregnancy centers, antiabortion organizations that try to persuade women to carry their pregnancies to term.

Kacsmaryk’s mother did not respond to a request for comment.

In the fall of 2000, after Griffith gave birth, Kacsmaryk returned to law school at the University of Texas and focused his attention on the legal foundations for abortion rights. Rep. Chip Roy (R-Tex.), who attended meetings of the conservative Federalist Society in law school with Kacsmaryk, said the two would regularly talk about Roe v. Wade and what they viewed as Supreme Court overreach on abortion.

“I very clearly remember having conversations at length about how the Supreme Court had contorted itself to achieve the ends of a policy outcome the result of which was tearing asunder the fabric of our country,” said Roy, who is still friends with Kacsmaryk.

More than a decade later, Kacsmaryk would criticize Roe in an article for Public Discourse, a conservative legal journal, claiming that seven justices had “found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.”

Through college and law school, Kacsmaryk was developing the “philosophical underpinning” for his antiabortion beliefs, said Kevin Christian, one of Kacsmaryk’s closest friends. But, he said, the issue didn’t become “real” for Kacsmaryk and his wife until 2006, when they lost their first baby at birth, a daughter they named Tyndale.

“It gave experience to something that had been probably a lot more academic,” said Christian. The experience, he added, prompted a “much deeper, radical change.”

Asked how many children he has today, Kacsmaryk will say six — “five living and one in heaven.”

Every year at Christmas, he and his wife hang six stockings above the mantel, Christian said, each paired with a photo.

Five smiling children, ages 6 through 15 — and then Tyndale, on the end, stillborn.

Tyndale’s death was a major factor in Kacsmaryk’s decision to join the board of Christian Homes and Family Services, said President Sherri Statler.

He became a trustee in 2015, according to public records. At that point, the organization was doing the same kind of work it did when Griffith lived there in 2000, offering housing and adoption services to women facing unexpected pregnancies — with the goal of providing an alternative to abortion. For the years Kacsmaryk served on the board — until 2019, when he became a judge — he was “incredibly passionate” about the mission, Statler said, and was always among the most prepared when the trustees convened three times a year.

“I knew immediately he was thinking about the work our ministry does all the time outside of board meetings,” said Statler.

With a hectic job and five kids, Kacsmaryk didn’t have time for many extracurriculars, said Christian, Kacsmaryk’s longtime friend. But he made time for Christian Homes — the only board he served on at the time of his nomination to the federal bench.

Even now, Statler said, he and his wife remain donors.

“Matt has always been driving towards action,” said Christian. His role at Christian Homes “was a great way for him to apply actively what he believed: his philosophical goals for protecting the unborn.”

By the time Kacsmaryk sat for his Senate confirmation hearing in 2017, the Democrats on the Judiciary Committee had learned about many of his socially conservative convictions. One by one, the senators quizzed Kacsmaryk on the commentary and legal briefs he’d signed in recent years.

Recognizing same-sex marriage will send the country “on a road to potential tyranny.”

The push for “so-called marriage equality” has been a “complete abuse of rule of law principles.”

The sexual revolution ushered in a world where an individual is “an autonomous blob of Silly Putty unconstrained by nature or biology” and where “marriage, sexuality, gender identity and even the unborn child must yield to the erotic desires of liberated adults.”

In a crisp navy blue suit, Kacsmaryk addressed each quote in a calm, measured voice. During the hearing and in his written responses to senator’s questions, he stressed that he could preside fairly over any matter, regardless of his past statements.

“I cannot think of any cases or category of cases requiring recusal on grounds of conscience,” he wrote. “If I am confirmed, I will fully and faithfully apply the law of recusal.”

Like many of Trump’s judicial picks, Kacsmaryk is White, male and affiliated with the Federalist Society. He has a long history of volunteering on Republican campaigns, including those for Sens. Ted Cruz and John Cornyn, both of Texas, and Texas Gov. Greg Abbott, according to the questionnaire he submitted to the Judiciary Committee. On the 17 different campaigns listed, Kacsmaryk said he helped with rallies, made calls and participated in get-out-the-vote efforts.

After several years working at a law firm, and then for the U.S. attorney’s office, Kacsmaryk in 2014 became deputy general counsel for First Liberty Institute, a conservative legal group that has challenged anti-discrimination laws, arguing that companies should not be compelled to make business decisions that go against their religious views. Among his clients were the Christian owners of a bakery in Gresham, Ore., who refused to bake a wedding cake for a same-sex couple.

Almost every morning, Kacsmaryk commuted an hour from his home around Fort Worth to the First Liberty office in Plano.

“On his commute he was passing places where he could have pulled off and made 10 times the money,” said Hiram Sasser, who worked with Kacsmaryk at First Liberty.

But Kacsmaryk had a deep passion for religious freedom, Sasser said.

One particular area of interest for First Liberty was birth control. Two months before Kacsmaryk’s initial nomination to the bench, he was at the White House for a meeting with Trump administration budget officials, making the case that regulations requiring employers to cover contraception should protect objections “on the basis of ‘religious beliefs’ or ‘moral convictions,’” according to his written responses to the Judiciary Committee.

Friends and former colleagues described a religiosity so strong it comes through in all aspects of Kacsmaryk’s life.

Faith is not a “suit he keeps in his closet and only takes out to go to church on Sunday,” said Roger Severino, vice president of domestic policy at the Heritage Foundation, a conservative research group, and a friend of Kacsmaryk’s. He prays often, several friends said, and is constantly rereading the Bible.

In his confirmation hearing, Kacsmaryk was asked whether judges ever apply their religious beliefs when ruling on a case.

“They should not,” he told Sen. Richard Blumenthal (D-Conn.).

“Do you believe they do?” Blumenthal asked.

“I can’t recall an instance when I observed a judge imposing their religion,” Kacsmaryk said. “But I will say for the record that it is inappropriate for an Article III judge to do so.”

Despite assurances of his impartiality, Republican Sen. Susan Collins of Maine joined every voting Democrat in opposition to Kacsmaryk because of his record opposing LGBTQ rights and what she called his “extreme statements” in opposition to Roe v. Wade.

Kacsmaryk was confirmed by the majority Republican Senate in June 2019 by a vote of 52 to 46.

On a Wednesday morning in early February, Kacsmaryk’s courtroom was more crowded than usual — with a mother and five children sitting side by side in the gallery’s wooden pews.

“Let us pray,” said one of Kacsmaryk’s clerks as the judge bowed his head. “God save the United States and this honorable court.”

The children turned to look at their father, the defendant charged with trafficking methamphetamine, in a green prison uniform and chains. Then his daughter, 9 years old, took the stand.

“He has been a very important role in my life,” she said, struggling to get out words through her sobs. “He showed me how to lift myself up.”

Kacsmaryk offered a box of tissues and a promise.

“We will make recommendations for programs that will allow your dad to return to you the man you know him to be — and the man God intended him to be,” he said.

Then he delivered a sentence he described as the minimum time recommended by federal guidelines: 14 years.

Day-to-day, most of Kacsmaryk’s cases have nothing to do with hot-button social issues. Because Amarillo sits at the crossroads of I-40 and I-27 in the Texas panhandle, a large portion of his caseload is drug-related — people traveling through with fentanyl or meth from California to Texas. Dallas-Fort Worth is the state’s closest major metropolitan area, a five-hour drive away.

For a lot of people, Amarillo is a pit stop. In the middle of Route 66, the city is peppered with old western-themed motels and souvenir shops selling plastic cattle horns and personalized Texas Ranger badges. The most famous restaurant in town is known for its 72-ounce steak challenge — where most nights, a few brave souls take the stage and attempt to eat a steak larger than their head while the whole thing is live-streamed on YouTube.

Mike Berry, vice president of external affairs at First Liberty, said out-of-state lawyers and plaintiffs will often tell him they want to file a case in Amarillo. They’ve heard lore of Judge Kacsmaryk, Berry said — and they think he’ll be their best shot at a win.

“I’m always like — ‘have you been to Amarillo? You know he’s not the only conservative judge in Texas.’”

Nevertheless, many far-flung lawyers and plaintiffs decide to make the journey.

The lead plaintiff in the abortion pills case, the Alliance for Hippocratic Medicine, incorporated in Texas — with a “registered agent” in Amarillo — several months before the lawsuit was filed. While the group’s website does not include any location or contact information, records filed with the Texas secretary of state’s office show that the group’s mailing address is in Tennessee.

Julie Marie Blake, senior counsel at the firm representing the Alliance for Hippocratic Medicine, said the group’s decision to incorporate in Texas predates the abortion pills lawsuit.

“I think they had decided to incorporate in Texas and put everything together quite some time ago,” said Blake, adding that the firm also selected Kacsmaryk’s court because another plaintiff in the case — a doctor — practices in the area.

Brought by four antiabortion medical groups and four doctors, the case aims to undo the U.S. Food and Drug Administration’s 2000 approval of mifepristone, which is used along with another drug, misoprostol, to facilitate a medication abortion. 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.

The FDA has repeatedly deemed the two-step medication abortion protocol to be a safe and effective alternative to surgical abortions. But the conservative group’s lawsuit argues that the FDA chose politics over science when it approved “chemical abortion drugs,” purposely ignoring what the plaintiffs claim are potentially harmful side effects.

“The FDA’s job is to protect the health, safety and welfare of America’s women and girls,” said Blake. “These dangerous drugs should never have been allowed on the market.”

A potential ruling by Kacsmaryk against the FDA could take mifepristone off the market, said Liz Wagner, senior federal policy counsel at the Center for Reproductive Rights.

“It would essentially be a national ban on medication abortion,” she said.

Officials within the Biden administration have taken note of the conservative lawyers flocking to Amarillo. In February, the Justice Department cited alleged forum shopping when it asked Kacsmaryk to transfer a lawsuit against the Labor Department out of his Amarillo court, which the government says has “no connection whatsoever to this dispute.” Such a transfer, the government argued, would “avoid the appearance that plaintiffs can, in effect, choose their judge by selecting a division in which a single judge sits.”

Forum shopping is a tactic employed by lawyers across the ideological spectrum, experts say, with left-leaning legal groups also at times seeking out judges and jurisdictions they think are more likely to rule in their favor.

“That’s what good lawyers do,” said Severino at the Heritage Foundation. “They consider, ‘Where might we have a venue that maximizes the chances of victory?’”

Kacsmaryk has occasionally ruled against conservatives. Twice, he dismissed challenges to the Affordable Care Act’s contraceptive coverage requirement. But many of his rulings have given conservative lawyers ample reason to return.

In December, Kacsmaryk sided with a Christian father who did not want his daughters to access birth control without his permission, challenging a federal program that provides low-cost or free contraception, including to teens without parental consent. Kacsmaryk agreed with the father that a provision of Title X violates the constitutional right of parents to “direct the upbringing of their children.”

“Contraception is a serious matter — both medically and for parents’ rights to control the upbringing and education of their children,” Kacsmaryk wrote. “The courts that have denied parental consent rights apparently presume contraceptive drugs are ‘no big deal.’”

The Biden administration announced last week that it will be appealing Kacsmaryk’s decision.

Separately, Kacsmaryk has twice blocked the Biden administration from quickly ending a Trump-era “Remain in Mexico” program, which sent asylum seekers back across the border to await decisions on their applications for U.S. protection. The 5th Circuit upheld Kacsmaryk’s decision, but the Supreme Court reversed it in June, saying Biden had the right to end the program. Kacsmaryk, the court said, had gone too far in requiring the president to keep in place policies that interfere with his ability to enforce immigration laws and shape foreign policy.

The justices sent the case back to Kacsmaryk to determine whether the administration’s plans complied with administrative law. Kacsmaryk again blocked the Biden administration’s efforts in December, finding it had not considered the policy’s “deterrent effect on illegal border crossings.” (The policy is not currently in effect because the Mexican government opposes its reinstatement.)

Kacsmaryk has received plenty of backlash from the left for his rulings, and for how he might rule in decisions still to come.

More than 150 people recently showed up outside Kacsmaryk’s courthouse to support access to medication abortion, an unusual show of force for the heavily conservative Texas Panhandle. The activists marched around downtown Amarillo, chanting and holding signs that read, “We are not your breeding cattle” and “Rural women fight back.”

Kacsmaryk didn’t see them. He was out of the office, miles away from the people who had traveled hours to denounce him.

The judge is happy in his new hometown, his friends and colleagues say — way out in Amarillo, with all its cowboy nostalgia, sitting at his desk beneath smiling pictures of his children and a bobblehead figurine of Justice Clarence Thomas.

He has learned to tune out the things people say, said Sasser, his former colleague at First Liberty.

“If someone threw a spitball at him, he wouldn’t even look at them.”

Alice Crites and Perry Stein contributed to this report. Editing by Peter Wallsten. Photo editing by Natalia Jimenez. Illustration and design by Natalie Vineberg. Copy editing by Mina Haq. Additional editing by Wendy Galietta.