Judge Who Ruled on Abortion Pill Was Handpicked by Network That Brought Lawsuit

This article first appeared in the Washington Spectator.

On April 7, U.S. district judge Matthew Kacsmaryk made headlines with an unprecedented ruling suspending the 2000 FDA approval of the abortion medication mifepristone. The ruling marked the first time a court has tried to invalidate the approval of a medication over the objection of the FDA.

Within an hour of Kacsmaryk’s ruling, a legal battle ensued, as regional federal courts rushed to support or oppose the decision. In their ruling, the 5th Circuit Court of Appeals temporarily blocked the central feature of Kacsmark’s order that overturned the FDA’s approval of mifepristone, but added their own restrictions on when during a pregnancy the drug could be used, and how it could be distributed. The Justice Department asked the Supreme Court to block the Appeals Court ruling pending a fast-tracked appeal, and the request was granted. These skirmishes are likely to lead the question back to the high court.

But damage has already been done. Governors in several blue states have begun stockpiling the medication. The stock price for GenBioPro, which produces a generic version of the medication, dropped sharply. The matter could affect the entire medical establishment. In an April 13 press release, Jack Resneck, Jr., the president of the American Medical Association, called the 5th Circuit Court of Appeal’s ruling “a profoundly dangerous step backwards.” Resnick warned that it “elevated speculative pseudoscience over data and evidence, arbitrarily rolling back access to a safe and effective drug and leaving millions of women without a critical medication for reproductive health care.” He added, “It also opens a pandora’s box for similar politically motivated, unscientific attacks by judges with no medical or scientific training against the FDA’s scientific, evidence-based approvals of countless other medications.”

No one who has been following trends in the federal judiciary should be surprised by the author of the district court ruling. Kacsmaryk, 46, is one of six judges appointed by Donald Trump to the twelve-judge bench for the northern district in Texas. Five of these six, appointed for life, are under the age of 50. Four of the remaining six were appointed by George W. Bush.

But more to the point, from 2014-2019, immediately prior to his appointment, Kacsmaryk served as deputy legal counsel for First Liberty Institute, which describes itself as the “largest legal organization in the nation dedicated exclusively to protecting religious freedom for all Americans.” The Dallas-based organization belongs to a cluster of organizations designed to advance the legal agenda of the religious right, including initiatives to roll back abortion rights and marriage equality; curtail the rights of LGBTQ citizens; and erode the separation of church and state.

Other partners include the Alliance Defending Freedom, the Heritage Foundation, and the Blackstone Legal Fellowships, which bring fundamentalist law students into the fold. All four work closely with the Federalist Society, the arch-conservative legal organization that has exerted outsized influence in the selection of federal judges by recent Republican presidents. Kacsmaryk was the founder of the Federalist Society’s Fort Worth chapter. Significantly, all of these organizations were founded or are run by members of the secretive coordinating body known as the Council for National Policy (CNP).

Kacsmaryk’s nomination to the district court was part of a broader project championed by his former boss, Kelly Shackelford, Founder, President, CEO, chief counsel of First Liberty Institute, and a longtime member of the Council for National Policy.

In February 2020, eight months after Kacsmaryk’s confirmation, Shackelford gave a celebratory presentation to the CNP called “An Update on the Judiciary.” He delivered his talk at the CNP February 2020 meeting, held at the Ritz-Carlton Laguna Niguel in Dana Point, California. At the time, Shackelford was Vice President and Chairman of the CNP lobbying and political fundraising arm, CNP Action (where he served alongside Supreme Court spouse Ginni Thomas).

Both the schedule of the four-day meeting and the video recording of Shackelford’s talk were obtained by Documented, an investigative journalism project. Shackelford described his opening gambit: “About three-and-a-half years ago there were a number of people in this room that were with me in New York to meet this new candidate–this Trump guy.”

“And it was about a thousand evangelical and Christian leaders,” Shackelford reported, “and I was asked to ask him the questions about judges. And I didn’t just ask about Supreme Court, but all the hundreds of lower court (appointments). And he made a promise to us, he said I’m going to appoint very strong conservative judges. And I’m going to rely on groups like Federalist Society, and Heritage, and groups like First Liberty on religious liberty, on the religious liberty issues.”

Shackelford told his CNP audience that their legal organizations put considerable effort into the process. “Some of us literally opened a whole operation on judicial nominations and vetting. We poured millions of dollars into this, to make sure the President has good information, he picks the best judges.”

Shackelford described several of the new Trump appointees: one is “a guy who is one of the most conservative, brilliant attorneys I’ve ever met. He worked for me, he would rather die than ever turn from the Bible or the constitution, and at age 38 the president appointed him to be a federal judge for the rest of his life.”

He went on to point out that while Obama over eight years appointed 58 judges to the Federal Court of Appeals, Trump in only his first three years had already appointed 50. “And who was number 50? What kind of person? Lawrence VanDyke, number one in his class from Harvard Law School, Solicitor General of the State of Nevada. Lawrence is so conservative that I’m liberal compared to Lawrence VanDyke. He was just confirmed at age 46 for the rest of his life to the 9th Circuit.”

By the end of his administration, Trump had appointed 28 percent of the 816 federal judgeships, and flipped three of the thirteen federal appeals courts from majority Democratic to Republican appointees—with an emphasis on conservative and youthful candidates.

But the judicial appointments are only the first part of the story. The mifepristone lawsuit was filed in November, 2022 by Alliance Defending Freedom, headed by Michael Farris, who had served as a member of the CNP’s executive committee along with Kelly Shackelford. The plaintiff was a consortium of five out-of-state conservative organizations called the Alliance for Hippocratic Medicine. According to its Texas tax filing, the group was incorporated in August 2022 (only three months before the filing of the lawsuit) in Kacsmaryk’s district.

The member organizations include the American College of Pediatricians (ACPeds), described by the Southern Poverty Law Center as a “fringe anti-LGBTQ hate group masquerading as the premier US association of pediatricians to push anti-LGBTQ junk science.” (Its name is easily, and perhaps intentionally, confused with the American Academy of Pediatrics, the actual premier US association of pediatricians.) The mifepristone lawsuit wasn’t the partnership’s debut. In 2021 Alliance Defending Freedom filed American College of Pediatricians et al v Becerra et al, seeking to limit transgender medical procedures.

These initiatives have been lucrative. Over the past decade First Liberty Institute has enjoyed twentyfold increase in revenues, from $725,516 in 2011 to $14,810,344 in 2020. Contributions to Alliance Defending Freedom more than doubled, from over $34.5 million in 2011 to over $76 million in 2021. One of its major donors is the DeVos family, owners of Amway and the Orlando Magic basketball team. The DeVos-Prince clan, which has played a leading role in the Council for National Policy for decades, includes Betsy DeVos, Trump’s embattled Secretary of Education, and her brother Erik Prince, the founder of the special operations organization formerly known as Blackwater. First Liberty and the Alliance Defending Freedom have also received major funding from the National Christian Foundation, one of the largest “dark money” donor-advised funds in the country. Both First Liberty Institute and Alliance Defending Freedom are designated as tax-exempt 501(c)3 charitable organizations.

Most of the mainstream reporting on the mifepristone lawsuit portray the event at face value: a “conservative Christian legal organization” represents an “anti-abortion group” before a “Trump-appointed judge.” But just beneath the surface lies the story of how lavishly funded non-profit organizations are bringing an orchestrated lawsuit before a judge who was handpicked by the same network. These groups have obscured their methods, but publicized their goals: to eliminate abortion, to repeal marriage equality, to relegalize conversion therapy, and eventually, to reverse the political and social reforms of the past century. As Kelly Shackelford told the CNP, “We’re literally changing the future of the country.”