A judge in Texas overseeing a lawsuit in which a conservative group is challenging the legality of the abortion drug mifepristone scheduled the first hearing in the case for Wednesday, but directed that court officials not make the timing public until the evening before.
According to sources cited by the Washington Post, Matthew Kacsmaryk, a US district court judge in Amarillo appointed by Donald Trump in 2019, ordered the hearing kept out of the court docket as a way to try to limit disruptions and protests, and also asked that lawyers arguing the case not to disclose information.
The hearing will present an opportunity for lawyers at the US justice department, which represents the Food and Drug Administration (FDA), and the drug’s manufacturer, Danco Laboratories, to present arguments for continued federal approval.
The lawsuit was brought by the Alliance Defending Freedom, which seeks to limit rights for LGBTQ+ people, expand Christian practices in public schools and outlaw abortion.
Observers said Kacsmaryk’s decision to delay placing the hearing in the public schedule was highly problematic, given the case could affect 40 million US women.
“With an issue as controversial as this, you want to have as much access as possible,” Carl Tobias, professor of law at the University of Richmond, said.
“There’s some tension if there are very real security concerns, but justice should tolerate that, too.
“It’s not surprising people want to have as much access as they possibly can without being a danger to anyone who may also want to observe the proceedings, but it’s certainly troubling if the judge wants the lawyers to be quiet.
“We want people to hear what his criticisms are, what questions he’s asking, how persuasive the arguments are, and to have maximum transparency and openness in federal court proceedings.”
The case is regarded as the most consequential since a conservative-dominated supreme court containing three Trump picks last year ended the right to abortion with the Dobbs ruling, throwing the question back to the states.
The Post said Kacsmaryk told attorneys he wanted to delay publicising the hearing because court staff, and himself and his family, had faced threats.
Kacsmaryk has presided over cases challenging Biden administration policies on immigration, LGBTQ+ rights and abortion access, but none have been so contentious as the case over mifepristone, which the FDA approved in 2000.
The lawsuit argues the FDA was wrong to do so, that the government ignored what it claims to be harmful side effects and that the court should order the regulator to reverse its decision.
Julie Marie Blake, an attorney for the Alliance Defending Freedom, recently told CBS the FDA “completely failed its responsibility to protect women and girls”.
But regulators have repeatedly deemed two-step medication abortion, a combination of mifepristone and misoprostol, to be safe.
Physicians and health officials have argued in court briefs both that reversing FDA approval of mifepristone would cause “profound and irreparable harm” to women and that the drug has “an exceptionally low rate of complications”.
Reproductive rights advocates say withdrawal of the drug would have substantial implications for abortion access, including in states that protect abortion rights.
The debate has become heated. This month, the national pharmacy chain Walgreens said it would not dispense the drug in 21 states where Republican attorneys general have threatened legal action against its distribution.
Walgreens said it planned to dispense mifepristone in any jurisdiction where it is legally permissible.
“Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws,” the company said.
California said its public healthcare system would cut ties with the chain.
“California won’t be doing business with Walgreens – or any company that cowers to the extremists and puts women’s lives at risk,” the governor, Gavin Newsom, said on Twitter.
The Illinois governor, Jay Pritzker, also condemned the decision.
“Women across the nation will be denied their right to access healthcare they are legally entitled to because of this awful corporate decision,” he said.
“Walgreens must rethink this policy. To all the other pharmacy providers, we’ll stand with you so you can provide this lifesaving care.”
Pritzker said he met the Walgreens chief executive, Roz Brewer, to express “his deep concern about their position and urged them to rethink their stance”.
But Walgreens wrote to the 21 Republican attorneys general to repeat assurances it would not distribute the drug in their states.
“We intend to be a certified pharmacy and will distribute mifepristone only in those jurisdictions where it is legal and operationally feasible,” the Walgreens senior director of external relations, Fraser Engerman, said in a statement.
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