What the Texas judge said in delaying notice of abortion-pill hearing

In asking lawyers to keep quiet about the timing of a high-stakes court hearing this week over access to abortion medication, a federal judge cited a “barrage of death threats and protesters” and his interest in avoiding a “circus-like atmosphere.”

U.S. District Judge Matthew Kacsmaryk took the unusual step of intentionally delaying public notice of the hearing planned for Wednesday morning in Amarillo, Tex. During a conference call with lawyers on Friday, Kacsmaryk said he might wait until late Tuesday to publicly announce the hearing — which typically would have been placed on the court docket shortly after the phone call.

“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” Kacsmaryk told the lawyers, according to a transcript of the call released Tuesday. “So it may even be after business hours, but that will be publicly filed.”

In recent years, the number of threats tracked by the U.S. Marshals Service, which protects judges and courthouses, has dramatically increased. But public access to legal proceedings remains a basic tenet of the U.S. judicial system, and it is rare for judges to delay public notice of hearings or ask lawyers not to discuss scheduled hearings.

Kacsmaryk, a nominee of President Donald Trump, is presiding over a lawsuit that seeks to revoke long-standing government approval of mifepristone, one of two drugs used in a medication abortion. The case is being closely watched because a ruling for the plaintiffs could disrupt nationwide access to the widely used medication, including in states where abortion is legal.

After The Washington Post reported on the judge’s directive to lawyers not to publicize the scheduled hearing, a coalition of media organizations criticized the judge’s decision.

“The Court’s attempt to delay notice of and, therefore, limit the ability of members of the public, including the press, to attend Wednesday’s hearing is unconstitutional, and undermines the important values served by public access to judicial proceedings and court records,” said a letter sent to the judge Monday by the News Media Coalition.

Hours later, Kacsmaryk posted notice of the hearing.

The transcript of the Friday phone call, first reported by TPM, provides new details about the judge’s plans. Kacsmaryk will hear Wednesday from lawyers for the Justice Department; the drug manufacturer; and Alliance Defending Freedom, the conservative group representing antiabortion medical organizations. He could rule on the group’s request for a temporary injunction suspending Food and Drug Administration approval of mifepristone at any time following the hearing.

The judge told the attorneys that his request not to “advertise” the hearing was not an official “gag order,” but “just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received. We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”

The Justice Department has requested additional funding next year for the U.S/ Marshals Service to protect “our nation’s judges and courts.”

Among the cases that have drawn the most attention is the indictment in June of a California man charged with plotting to assassinate Supreme Court Justice Brett M. Kavanaugh. In 2020, the son of a federal judge in New Jersey was killed and her husband was critically wounded at their home by an embittered self-proclaimed “anti-feminist” who had filed a case before the judge.

In Texas, Kacsmaryk has attracted attention in part because of his long-held antiabortion views. More than 150 people recently showed up outside his courthouse to support access to medication abortion.

Kacsmaryk’s staff has saved threatening voice mails to a folder on a computer in the judge’s chambers, flagging the most concerning ones to the U.S. Marshals Service, according to several people familiar with the Amarillo courthouse. The messages have targeted Kacsmaryk and his family, and included death threats, they said.

“You will have to eat the flesh of your sons, you will have to eat the flesh of your daughters,” said one man who called the chambers. “I will kill you with a sword.”

The media organizations critical of the judge’s delayed public notice acknowledged the safety concerns.

“While we are aware and mindful of the Court’s expressed concerns regarding security, the Government’s security plan has been effective,’ according to the letter, ‘and there is no reason to believe, based on the record, that it is insufficient to protect all hearing participants and court staff.”

Caroline Kitchener and Perry Stein contributed to this report.