Heretic on The Hill: Knowing It When You See It

In 1964 Supreme Court Justice Potter Stewart wrote an opinion concerning a film the Ohio courts had deemed to be obscene. On the question of what exactly counts as pornography he said it was difficult to define but “I know it when I see it.” I apply the same standard in deciding when a judge is incorporating his or her religion in a ruling. Judge Matthew Kacsmaryk ruled this week against the FDA’s approval 23 years ago of mifepristone, the drug used in the majority of abortions in the country, and I know it when I see it.

Judge Kacsmaryk grew up in a family of born again Christians and attended Abilene Christian University where daily chapel was mandatory.  As a freshman, he wrote in the student newspaper that he supported the Republican party platform position on abortion and that the Democratic party had “facilitated the demise of Christian America.” 

Kacsmaryk was an attorney at the First Liberty Institute, a law firm which has represented the praying football coach, Christian bakers who don’t want to bake for certain people, and other “religious freedom” plaintiffs. He was nominated for a judgeship by President Trump and confirmed by the Senate with only Republican votes, which is why elections matter.

Contrary to what the plaintiffs in this case argued, the medical community agrees that the safety of mifepristone is upheld by science and research. The lack of standing by the plaintiffs is obvious. The timing of the case, 23 years after the drug was approved but less than a year after the Dobbs decision, further undermines the sincerity of the plaintiffs’ concerns for those who actually use mifepristone.

Judge Kacsmaryk’s ruling was not only riddled with judicial malpractice, his opinion was written with the language of the antiabortion movement. The opinion uses “unborn human” when even the Supreme Court has used the term “fetus.” He refers to doctors as “abortionists.” No reasonable person would conclude that he is unbiased on this issue.

I have no doubt that his bias comes from his religious beliefs. This lengthy profile explains a lot. It describes his religious upbringing and says, “He prays often, several friends said, and is constantly rereading the Bible.” It’s clear to me that he replaced the science supporting the safety of mifepristone with his religious convictions about abortion and found a way to rule accordingly. The fate of mifepristone will end up being decided by the Supreme Court and there is some hope that even they won’t support Judge Kacsmaryk’s decision.

The members of the Secular Coalition sent a letter to the Attorney General concerning his appeal to the Supreme Court which you can read here. President Biden and the Senate majority have done a good job so far of filling vacancies with better judges than Judge Kacsmaryk. We need that to continue.


Regular readers here will remember that last month everyone at SCA’s Lobby Day on Capitol Hill advocated for the Supreme Court Ethics, Recusal, and Transparency Act (SCERT). We knew the Court has an ethics problem but we didn’t know it was this big a problem until earlier this month when we learned that Justice Thomas had been accepting luxury vacations from a billionaire for over 20 years and not disclosing them. And that the same billionaire bought property from Thomas, improved it, and let his mother continue to live there, with no disclosure by Thomas.

It’s not just Justice Thomas; every Justice accepts travel from private groups for speaking engagements. Justice Breyer took at least 225 subsidized trips over 14 years. A seat on the Supreme Court should not be treated like a winning lottery ticket. And we need to know what religious advocacy groups and what influential people are doing favors for the justices. If you haven’t already you can contact your representatives about supporting SCERT with our Action Alert. 


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