Washington — A coalition of media organizations is pushing back against the decision by a federal judge in Texas to hold a hearing this week in a closely watched case involving the abortion pill because of his delay in notifying the public of the proceeding.
A lawyer for the news outlets told U.S. District Judge Matthew Kacsmaryk that his attempt to withhold public notice of the hearing set for Wednesday, which limits the ability of the press and public to attend, is unconstitutional and “undermines the important values served by public access to judicial proceedings and court records.”
“Across the ideological spectrum, the public is intensely interested in this case,” lawyer Peter Steffensen wrote in a letter on behalf of the coalition. “The court’s delayed docketing of notice of Wednesday’s hearing, and its request to the parties and their counsel not to disclose the hearing schedule publicly, harm everyone, including those who support the plaintiffs’ position and those who support the defendants’ position.”
The news organizations objecting to the attempt to keep the forthcoming hearing from being promptly publicized include: the Reporters Committee for Freedom of the Press, The Washington Post, NBCUniversal News Group, ProPublica, the Texas Press Association, The Freedom of Information Foundation of Texas, The Markup and Gannett Co., which publishes eight Texas-based newspapers.
The letter follows a report from the Washington Post stating that Kacsmaryk held a conference call Friday with lawyers involved in the medication abortion case to schedule a hearing for Wednesday in Amarillo. While the proceeding would typically be placed on the court’s docket, which is available to the public, Kacsmaryk said he would wait until late Tuesday to do so in order to limit disruptions and protests, according to the Post.
The media groups opposing the move by Kacsmaryk said that “no compelling governmental interest justifies” it. They called on the judge to immediately docket notice of the hearing, promptly disclose future proceedings in the case and release the lawyers involved in the legal fight from his request not to discuss the hearing schedule publicly.
“The court cannot constitutionally close the courtroom indirectly when it cannot constitutionally close the courtroom directly,” Steffensen, of Southern Methodist University, wrote. “The United States Supreme Court has made clear that, because of our historical tradition of public access to judicial proceedings, and because of the structural necessity of such access to ensure government transparency and accountability, the circumstances in which a courtroom can be closed without violating the First Amendment and common law rights of access are rare.”
Addressing Kacsmaryk’s concerns about security, the media coalition said the federal government’s security plan “has been effective, and there is no reason to believe, based on the record, that it is insufficient to protect all hearing participants and court staff.”
Kacsmaryk, appointed to the federal bench by former President Donald Trump, is presiding over a challenge to the Food and Drug Administration’s approval of mifepristone, one of two drugs used to terminate a pregnancy before 10 weeks gestation.
The lawsuit targeting the abortion pill was filed in November by the Alliance Defending Freedom, a conservative legal organization, on behalf of anti-abortion medical associations. They argue the FDA erred in determining the abortion drug’s safety and effectiveness and approving it under a federal rule that allows accelerated approval of certain drugs that treat “serious or life-threatening illnesses.”
The FDA issued its approval of mifepristone in 2000, and medication abortions account for more than half of all abortions in the U.S. in 2020, according to the Centers for Disease Control and Prevention.
The protocol involves two drugs, mifepristone, which blocks the hormone progesterone, and misoprostol, which brings on contractions.
Lawyers for the Biden administration told Kacsmaryk in filings that “removing access to mifepristone would cause worse health outcomes for patients who rely on” its availability to safely terminate their pregnancies.
The lawsuit is the latest attempt by anti-abortion rights advocates to limit access following the Supreme Court’s June decision ending the constitutional right to an abortion. In addition to bans by gestational age and method, Republican-led states have also enacted laws limiting medication abortion.