Abortion pill ruling puts 'judge shopping' concerns back in spotlight

A pivotal fight over the Food and Drug Administration's approval of the abortion pill mifepristone has spurred new accusations of "judge shopping" by plaintiffs seeking a favorable audience for their litigation.

The legal battle over the abortion pill has largely taken place in Amarillo, Texas, home to a federal court division with just one district judge, Matthew Kacsmaryk.

That judge, appointed to the federal bench by former President Donald Trump in 2019, previously worked for the Christian conservative legal group First Liberty Institute and has espoused socially conservative views on LGBTQ rights and abortion.

By filing the lawsuit in Amarillo, the cadre of anti-abortion groups seeking to cancel the FDA's two-decade-plus approval of the drug virtually guaranteed Kacsmaryk would hear their case. Critics have accused the plaintiffs of targeting Kacsmaryk to preside over the case because he was seen as more sympathetic to their arguments that the drug has major safety concerns.

"We can't always predict that judges will act in accordance with their biographies," Mary Ziegler, a law professor at the University of California, Davis, told CNBC.

But "if you're the Alliance Defending Freedom" — the legal group representing some of the plaintiffs — "you're going to want someone like [Kacsmaryk] because your odds are going to be better," she said.

The Amarillo court did not immediately respond to CNBC's request for comment.

The strategy of targeting single-judge divisions damages the perception of judicial fairness, critics say. They argue plaintiffs are skirting the usual process of assigning cases randomly — which is mainly intended to "avoid judge shopping," as one federal court explains.

Kacsmaryk on Friday suspended mifepristone's approval, while giving the Biden administration time to appeal. The same day, another federal judge ordered the FDA not to restrict the pill's availability in 17 states, essentially contradicting the Texas judge's ruling. The issue could ascend to the U.S. Supreme Court, which bears a 6-3 conservative majority.

A ruling on the pill's legal status will have massive implications around the country, including in states where abortion remains legal after the court's decision to overturn Roe v. Wade last year. Medication abortion is the most common form of the procedure in the U.S.

An attorney for the ADF has rebuffed accusations of judge shopping.

"We're very confident that any judge who looks at the FDA regulations and what the FDA actually did is going to rule for us," ADF senior counsel Denise Harle told Fox News in February. "That's what we're looking for, just a fair trial, a fair opportunity to make our arguments to the court."

Harle also told Fox that the Alliance for Hippocratic Medicine, a group of anti-abortion doctors represented by the ADF, is based in Amarillo.

But Kacsmaryk's courthouse has reportedly become a preferred destination for conservative legal causes. The judge has repeatedly sided with challenges to Biden administration policies.

Other judges have garnered similar accusations. Trump was accused of judge shopping for Florida federal Judge Aileen Cannon, whom he appointed, when he filed a sweeping lawsuit in 2022 against his former political rival Hillary Clinton in Cannon's division in Florida.

That case was instead assigned to Judge Donald Middlebrooks, an appointee of ex-President Bill Clinton. Middlebrooks dismissed it.

But Cannon was randomly assigned to another Trump lawsuit months later, this one asking a judge to appoint a "special master" to review the government documents the FBI seized in an August 2022 raid of the ex-president's resort home Mar-a-Lago. Cannon granted Trump's request, surprising some legal experts at the time.

It isn't new for litigants to try to get their cases heard in the most advantageous environment. The strategy is not a partisan one, either: Ziegler noted that a 2017 challenge to then-President Trump's controversial travel ban was filed in Hawaii.

That form of forum shopping is "always kind of an imperfect proxy" for those seeking a sympathetic judge, Ziegler said. She noted there are progressive judges in conservative states and vice versa.

But by filing a lawsuit in a single-judge division, a plaintiff can more easily target a specific judge.

Constitutional law expert Steve Vladeck wrote in February that, "Of the 27 divisions in Texas' four district courts, nine have a single judge; 10 others have only two."

In a separate case brought before Kacsmaryk this year, the Department of Justice asked for a transfer to a different federal court, arguing that the decision to "forum shop" to the Amarillo court "undermines public confidence in the administration of justice" because the court "has no connection whatsoever to this dispute." Kacsmaryk rejected that request.

Another DOJ brief in February singled out Texas Attorney General Ken Paxton, accusing the Republican official of filing 18 of his 28 lawsuits against the Biden administration in single-judge divisions. Paxton's office has defended its decisions on where to file its cases, telling CNN last month that the Biden administration's accusations risk "undermining the public's trust in the legal system."

Ziegler echoed the view that even the appearance of judge shopping can erode trust in the courts.

"When the public knows you can order an outcome by picking a judge, it makes it really hard to convince the public that the courts are legitimate," she said.