Mifepristone is safer than aspirin. Much safer. The FDA approved the drug for early abortions in 2000, after fully—and carefully—vetting it over four-and-a-half years (more than triple the time such approvals typically take). On Friday, in a federal court in Texas, a Christian nationalist judge overruled that longstanding decision in what can only be described as a lawless and nakedly partisan decision. This isn’t his first such decision this year.
The opinion mentions conspiracy theories, and eugenics slander, and says things like, “mifepristone to kill the unborn human.” As Slate’s Mark Stern put it, the judge “essentially copied and pasted the arguments from [right-wing legal advocacy group] ADF’s brief, rephrasing them as analysis. He bought into every conspiracy theory and lie and butchered logic ADF gave him. Right down to comparing reproductive rights to eugenics.”
Indeed the decision does look a lot like collusion between the judge and the Christian nationalist crusaders who argued before the court.
Judge Matthew Kacsmaryk—who overturned the drug that is, again, safer than aspirin—is a Christian nationalist in a robe that enables him to impose his religion on the entire country. And this is a lifetime appointment.
Or, to put it in terms that reflect the hostile takeover of our judiciary, Kacsmaryk is an ideologue. Leonard Leo, the Federalist Society powerbroker, helped Trump and Mitch McConnell pack the federal courts. The Federalist Society nurtured and screened potential federal judicial nominees, with Leo choosing judges based on their ideological purity—that’s how his job was described, as “the monitor of the various [judicial] nominees’ ideological purity.” Kacsmaryk, who was chosen for his ideological purity, has been a member of Leo’s Federalist Society for more than a decade, co-founding his local chapter.
When he was first nominated to the federal bench Kacsmaryk was a crusader at First Liberty Institute, the Christian Nationalist legal outfit behind the case the Supreme Court decided last term involving the football coach who imposed sectarian prayer on students at public school football games. In that case, federal appellate judges (not affiliated with the Leo takeover of the judiciary), noted that the Institute had spun “a deceitful narrative” to even get that case before the six justices of the apocalypse. The Institute is the group behind the Bladensburg Cross case. And the case involving the Christian cross in the Mojave desert. And trying to get Jesus portraits up in public schools in Ohio.
The Institute’s founder, Kelly Shackelford, often preaches about his work in churches. He has ties to Supreme Court Justice Samuel Alito, who praised Shackelford’s work to mega-donors shortly after Alito joined the high court: “Sam told us that Kelly is someone we should know,” he wrote in an email and confirmed to the New York Times.
As I wrote in American Crusade:
“The Institute wants Christian supremacy. It’s fought to keep evolution out of public schools; and bible classes, Jesus portraits, and school-imposed prayer in public schools. Like other Crusaders, the Institute wraps this supremacy in religious freedom, which the average American understands as equality.”
As Deputy General Counsel at the Institute, Kacsmaryk attacked the fight for LGBTQ equality (what he calls the “Sexual Revolution”) as:
rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially “radical” in its demands. It sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults. In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.
In that same piece he referred to contraception (what he euphemistically calls “HHS mandates”) as “a continuous culture war, pitting sexual liberty against religious liberty in fights over pornography, divorce, abortion, and HHS mandates.”
“Culture war” is a grossly misused term, especially when it glosses over brazen violations of human rights. Kacsmaryk isn’t a culture warrior; he’s a crusader. Kacsmaryk was selected for a lifetime appointment precisely because he would, when deciding cases, privilege his personal, preexisting beliefs over the law.
Specifically, Kacsmaryk was chosen for a judgeship that would give him significant power. It would allow his fellow crusaders to file in a court that would give Kacsmaryk a high probability of hearing their case—what’s known as “forum shopping.” Typically, when a federal lawsuit is filed, a trial judge in the court is randomly assigned to the case. But the fewer the judges, the more likely the case would go to each. Christian nationalist outfits like First Liberty Institute, then, could almost choose their friend and ally to be the judge in a lawsuit of national importance. Judge Reed O’Connor in a neighboring Texas federal court pioneered a form of right-wing judicial activism that allows conservative and Christian nationalist legal groups to file cases in his district with a good chance of getting him, a well-known activist for conservative political causes, to decide cases.
Things have gotten so out of hand that now, in the Amarillo Division of the Northern District of Texas, 100 percent of the cases go to Kacsmaryk. This is why several legal experts have correctly referred to Kacsmaryk as “the most powerful man in America.”
Kacsmaryk has stayed his opinion for a week while the appeal goes up to the Fifth Circuit, which is the most conservative and activist in the nation. There’s no suspense. There’s no law. There’s no facts. There is just the political whim of a small minority of Christian nationalists seeking to impose their narrow religious viewpoint on all of us by abusing and perverting the rule of law. We know what’s going to happen on appeal as we knew what Kacsmaryk was going to do. And then the case will go to the Supreme Court.
At each stage, relying on the long-standing reputation of our courts as impartial umpires that just call balls and strikes, the captured judiciary is rewriting the law to align with the most extreme political wishlists. That is where we are as a country right now. And that is why this judge overturned the approval which happened 23 years ago of a drug that’s safer than aspirin.
If all of this begins to sound like collusion, it absolutely is. From the plaintiffs, to the lawyers, to the judge.
The plaintiff in the mifepristone case is an umbrella organization for several Christian medical groups. The Alliance for Hippocratic Medicine, was incorporated after the Supreme Court overturned Roe v. Wade just down the street from Kacsmaryk’s courthouse. Literally around the corner, less than 300 feet away, in fact. Not only are the crusaders forum shopping, they’re creating non-profits to tap into the Kacsmaryk-to-Supreme-Court pipeline.
Who argued the case? Erin Hawley, wife of senator Josh Hawley, who met when both were clerking for Chief Justice John Roberts. She currently works at Alliance Defending Freedom. Before launching his campaign for the U.S. Senate he worked at the Becket Fund for Religious Liberty. Both ADF and Becket are Christian nationalist legal outfits working to enshrine Christian legal supremacy.
The mifepristone hearing that Kacsmaryk held for the trial began with a prayer. Courthouse News reports:
When the hearing finally kicked off around 9 a.m., it started with a call to prayer. “Let’s pray,” a court clerk said as Kacsmaryk entered the courtroom. “God save the United States and this honorable court.”
You might not think that’s a prayer, but that’s the point. Whether or not this is a prayer is actually an issue that’s being litigated in cases. Kacsmaryk’s Institute has been arguing for years that the generic opening lines of a federal court session are a prayer in cases involving state judges who are imposing genuine, partisan, and proselytizing prayers on captive courtrooms. Kacsmaryk’s doing his buddies a solid. He’s very much still a part of the Institute, but working on the federal bench
And if you’ve read this far wondering when this opinionated lawyer will start explaining the actual decision to you, I already have. All you need to know about this decision is Kacsmaryk, the emblem of judicial authoritarianism born of Christian nationalism.