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Texas judge issues public notice of abortion pills hearing after complaint from media outlets

A lawyer for the media organizations said in a letter to the Trump appointee earlier Monday that any secrecy around the public aspects of the hearing was unconstitutional.
Packets of mifepristone.
Packets of mifepristone.Phil Walter / Getty Images file

A federal judge on Monday scheduled a hearing on the use of abortion pills after a coalition of media organizations pressed him to provide more transparency in a closely watched Texas case.

Judge Matthew J. Kacsmaryk, a Trump appointee in the U.S. District Court for the Northern District of Texas, made public that the hearing would be held Wednesday.

The public notification of the hearing came after a lawyer representing the media coalition, which included NBCUniversal News Group and The Washington Post, wrote in a Monday letter to Kacsmaryk that his reported decision not to make the hearing schedule public well in advance was unconstitutional.

The lawyer, Peter B. Steffensen of the Southern Methodist University’s First Amendment Clinic, cited a report over the weekend by The Washington Post that said Kacsmaryk told attorneys in the case that he wouldn't post the hearing on the docket until Tuesday night.

"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," wrote Steffensen.

The public is "intensely interested in this case" and the judge's decision to delay the public notice of the Wednesday hearing harms "everyone, including those who support the plaintiffs’ position and those who support the defendants’ position," he added.

The Post reported that Kacsmaryk held a conference call with attorneys on Friday to schedule the Wednesday hearing in Amarillo, citing multiple people familiar with the call, but wanted to delay public notice of the hearing to lessen the chances of disruptions and possible protests.

Staff for the judge didn’t immediately respond to a request for comment.

Restricting the ability of the press and public to attend judicial hearings is rare and can be "justified only by a compelling governmental interest and, even then, such restrictions must be narrowly tailored to advance that interest. No such compelling governmental interests are present here," Steffensen wrote.

The Senate confirmed Kacsmaryk mostly along party lines in 2019.

The lawsuit at the focus of Wednesday's hearing was filed in November by the anti-abortion rights group Alliance for Hippocratic Medicine. The group alleges that the process the Food and Drug Administration used more than 20 years ago to evaluate and approve one of two drugs used for medication abortions — mifepristone — was unlawful and should be revoked.

Medication abortion accounts for more than half of all abortions nationwide, according to the Guttmacher Institute, a research group that supports abortion rights.

If Kacsmaryk issues an injunction in the case, the Justice Department could immediately ask a higher court to pause, or stay, the reach of Kacsmaryk's ruling. But taking that step might not yield the result sought by DOJ given the number of conservative-leaning judges who sit on the 5th U.S. Circuit Court of Appeals and the Supreme Court's conservative majority.