Democrats all but shook pots and pans in the streets to protest a federal judge’s decision on Friday to block the US Food and Drug Administration’s approval of mifepristone, one of two abortion pills that have been widely used, safe and legal for decades.
President Joe Biden warned that the ruling by US District Judge Matthew Kacsmaryk, a Texas-based judge nominated by former President Donald Trump, represented the GOP’s “next big step” in banning direct abortions. Senate Majority Leader Chuck Schumer (DNY) said Kacsmaryk only “completely eviscerated the FDA as we know it.” The Justice Department, which represents the FDA, has appealed the decision.
In the midst of this, Senate Republicans have been virtually silent. Why?
Because that’s exactly the kind of decision you’d expect — or, at least, the one you should have predicted when you voted to confirm abortion rights opponents to the federal bench.
He didn’t want to say this out loud. They know how unpopular and out of step it is to celebrate more rollbacks of reproductive rights. They know that access to abortion drugs has broad support. He knows his party gets it slipped up in the election all over the country because of the attack on abortion rights, especially after the Supreme Court struck down Roe v. Wade last year.
So, while Congress is in recess for two weeks, Republican senators are hoping they won’t say anything.
But if you doubt he’s happy with the judge’s decision, look no further than the 2019 vote to confirm Kacsmaryk to a lifetime federal court seat. They know that he has a record of strongly opposing abortion rights. And every GOP senator except one, Susan Collins of Maine, choose him.
“In 2019, I voted against the confirmation of Judge Kacsmaryk, and I strongly disagree with his decision in this case,” Collins said in a statement Monday. “Mifepristone is an FDA-approved drug that has been on the market for over two decades and has been extensively studied.”
Collins is one of two self-described pro-choice Republican senators. The other, Lisa Murkowski of Alaska, voted for Kacsmaryk. He did not respond to a request for comment on the decision to target abortion drugs.
Of the 49 Republicans in the Senate, Collins is also one of only two who have spoken about Kacsmaryk’s decision. The other, Sen. Cindy Hyde-Smith (R-Miss.), celebrated the decision on Twitter as “a victory for expectant mothers and their unborn children.”
That leaves the rest of the Senate’s 47 Republicans trying to avoid publicly saying what they think of a federal court order aimed at banning abortion drugs nationwide, and possibly laying the groundwork for a total abortion ban through the courts.
Sen. James Lankford (R-Okla.) kind of talk about it Kacsmaryk’s decision on Twitter, however, only criticized Democrats for suggesting that the Biden administration ignore it. A spokeswoman for Lankford did not respond to a request for comment on whether Lankford was happy with the court’s decision. Sen. Lindsey Graham (RS.C.) spoke publicly on Fox News Sunday about how people think the pro-life “message wins,” but did not talk about the court’s decision.
No one can claim to be surprised by Kacsmaryk’s decision. He knew that Kacsmaryk — a former deputy general counsel for the First Liberty Institute, a right-wing Christian advocacy group — was anti-abortion when Trump tapped him for the judgeship in 2017. He watched national reproductive rights groups argue against the nomination for more than a year.
For everything Trump unqualified and ideological court selection, Kacsmaryk stood out as one of the most extreme nominees in the section because of his record on abortion rights. They against employer contraception mandates in the Affordable Care Act, represented First Liberty Institute in a lawsuit when it tried to prevent it from providing health care required by the Department of Health and Human Services to female employees. Her organization took a hard line against the provision of contraception.
Kacsmaryk play a major role in against Washington state law which requires pharmacists to provide birth control to women. Before becoming a judge, he had criticized Roe v. Wade, described the Supreme Court’s 1973 landmark decision as one in which “seven Supreme Court justices found the unwritten ‘fundamental right’ of abortion hidden in the due process clause of the Fourteenth Amendment and the shadow of the ‘penumbras’ of the Bill of Rights, a celestial phenomenon that is not visible to the eyes of non – a lawyer.” (What?)
Kacsmaryk, an active member of the Conservative Federalist Society, is also known for his record attacking LGBTQ + rights.
He is against the protection of LGBTQ+ people job, house and health. They said that including protections for LGBTQ+ people in the Violence Against Women Act would be a “big mistake.” In 2015, when Utah passed nondiscrimination protections, Kacsmaryk called the law “bad idea” because it suggests that discrimination based on sexual orientation and gender identity should be taken as seriously as other forms of discrimination. They sign the 2016 letter which describes transgender as an “illusion”.
Carl Tobias, the Williams Law Chair at the University of Richmond and an expert on judicial nominations, said that the right-wing Christian legal advocacy group Alliance Defending Freedom deliberately sought Kacsmaryk to try the drug abortion case in court “should come. It’s not a surprise” to GOP senators. The group focuses on banning abortion and reducing rights for LGBTQ+ people.
“In Kacsmaryk’s Judiciary Committee hearing and during the confirmation process, Senate Democrats and interest groups clearly indicated that he has spent much of his legal career as an anti-abortion and anti-LGBTQ rights fighter by judging cases opposing reproductive freedom and rights. LGBTQ individuals ,” said Tobias.
Of the 49 Republicans in the Senate today, 38 are in favor Kacsmaryk’s confirmation vote. On Tuesday, HuffPost contacted all 38 people to comment on whether they were happy with the decision on the abortion drug.
No one answered. Only Collins and Hyde-Smith were previously considered.
Sens. Ted Cruz and John Cornyn, both Texas Republicans, were the ones who recommended Kacsmaryk to Trump for the judgeship. Kacsmaryk already before volunteering in both Senate campaigns, and both senators spoke highly of him when he was confirmed in 2019. Cruz even called him “a good friend.”
“I am pleased to see the Senate vote today to confirm my good friend, Matt Kacsmaryk, to fill this important judicial vacancy for the Northern District of Texas,” Cruz said at the time. “As a passionate constitutionalist, Matt has served Texas well in a variety of professional and public service roles and has proven himself to be an experienced and worthy candidate for this vacancy.”
“Matthew’s experience as a federal prosecutor and advocate for the First Amendment will serve him well in this role,” Cornyn said at the time. “I’m grateful for my colleagues’ support for the confirmation and thank President Trump for the nomination.”
Neither Cruz nor Cornyn commented Tuesday on whether they were happy with Kacsmaryk’s abortion pill decision.
“I’ll be in touch if anything comes up for you,” Cornyn’s spokeswoman said. Cruz’s spokesperson did not respond at all.
Sen. Josh Hawley (R-Mo.) probably knows more about the Kacsmaryk court case than anyone. His wife, Erin Morrow Hawley, is an attorney in the middle of a lawsuit in Kacsmaryk’s courtroom, focused on trying to overturn the FDA’s approval of an abortion drug.
Like nearly everyone else in the caucus, Hawley did not respond to requests for comment on Kacsmaryk’s decision.
Igor Bobic contributed reporting.