Texas Judge Sought to ‘Hide’ Abortion Pill Hearing Information

On March 14 2023, a popular post to Reddit’s r/politics claimed that a Texas judge intended to “hide” an “abortion hearing,” linking to a post on the legal blog AboveTheLaw.com:

As first reported by the Washington Post, Judge Kacsmaryk held a conference call with the parties on Friday during which he scheduled a hearing for this coming Wednesday on whether to issue a nationwide injunction on the drug. But in an effort to “minimize disruptions,” he said he was going to keep the hearing off the public docket until Tuesday night.

Fact Check

Claim: A Texas judge tried to suppress information about the location and purpose of a hearing related to the legality of medical abortions (“the abortion pill.”)

Description: Claims have been made that Texas United States District Judge Matthew Kacsmaryk concealed the location and purpose of his planned hearing regarding the legality of medical abortions. Kacsmaryk allegedly sought to suppress information in an attempt to keep away protests and impede journalists from covering the event. However, his attempt to hide the event instead led to heightened public interest.


Rating Explanation: Multiple sources, including court transcripts, Reddit posts, and various news outlets, confirm that Kacsmaryk did attempt to suppress information about the hearing. As such, the claim is considered truthful.

Amarillo is a four-hour drive from any other major metro area, with few direct flights to its airport. So Kacsmaryk’s effectively sealed order would have the effect of keeping most protestors away. It would also mean that reporters, given just a few hours notice, would be unlikely to be able to get there in time to cover it.

The linked blog post was published on March 13 2023 with the following headline: “Conservative Judge Tries To Hide Abortion Hearing, Learns About ‘Streisand Effect.'” The headline referenced the “Streisand effect,” in which attempts to downplay or hide information instead dramatically increases its visibility:

In 2003, Streisand sued photographer Kenneth Adelman for distributing aerial pictures of her mansion in Malibu. But Adelman was no paparazzo—he operated the California Coastal Records Project, a resource providing more than 12,000 pictures of the California coast for scientists and researchers to use to study coastal erosion. At the time Streisand sued Adelman for $50 million, the picture in question had been accessed a whopping total of six times—twice by Streisand’s lawyers. Nonetheless, her lawsuit stated that the photos explicitly showed people how to gain access to her private residence.

Of course, news outlets around the world reported on Streisand’s outrage, and before long, the photo on Adelman’s website (below) had received well over a million views. The photo was also picked up by the Associated Press and was reprinted countless times.

The March 13 2023 analysis from Above the Law began with a paragraph about “judge shopping,” a concept similar to “venue shopping.” Both involved targeting a court system (“venue”) or specific judge to encourage a result favorable to the engaged party:

A key component of any political strategy is finding a decision setting that offers the best prospects for reaching one’s policy goals, an activity referred to as venue shopping.

Above the Law identified “the Northern District of Texas’s Amarillo section, where the GOP parked conservative activist Matthew Kacsmaryk” as “the premiere destination for judge-shopping.” It described the crux of the hearing in question — a November 2022 lawsuit filed to overturn the Food and Drug Administration (FDA)’s authorization of the use of “abortion pills” like mifepristone — and described Kacsmaryk’s suppression efforts as “inappropriate”:

The public right of access to judicial proceedings is axiomatic, and preventing core First Amendment activity is clearly an inappropriate reason to seal a minute order. And the irony of a judge seeking to shield his own courtroom from protest while women seeking medical care are barraged daily by activists exercising their First Amendment right to hurl abuse is thick.


Whatever the court’s rationale, Judge Kacsmaryk’s cack-handed effort to seal the hearing sub rosa by asking the attorneys to keep quiet about it as a “courtesy,” seems to have failed spectacularly.

Above the Law also quoted and linked to a March 12 2023 analysis on the website Law Dork, which in which analyst Chris Geidner focused on the judge’s general and publicly emphasized views on courtroom transparency:

U.S. District Judge Matthew Kacsmaryk doesn’t like information about the cases taking place in his court hidden from the public — except for when he wants the information to be hidden from the public.

Kacsmaryk warns people in his court that he “heavily disfavors” sealing matters in cases before him because of the “public’s right to know” — standards that he doesn’t appear to apply to himself … The moves [to hide the hearing] also run counter to the principles made clear in Kacsmaryk’s own “Judge Specific Requirements,” as detailed on his page on the U.S. District Court for the Northern District of Texas’s website.

“The Court ‘heavily disfavor[s] sealing information placed in the judicial record’ and discourages such requests,” the Kacsmaryk’s requirements state.

On March 13 2023, Geidner tweeted an image of “the actual order”:

A March 12 2023 New York Times article about the judge’s controversial efforts to conceal the hearing quoted an unidentified person “familiar with the case” as deeming his attempt “very irregular”:

The federal judge in a closely watched lawsuit that seeks to overturn federal approval of a widely used abortion pill has scheduled the first hearing in the case for [March 15 2023], but he planned to delay making the public aware of it, according to people familiar with the case.

Judge Matthew J. Kacsmaryk, of the Northern District in Texas, told lawyers in the case on Friday [March 10 2023] that he was scheduling the hearing for Wednesday morning [March 15 2023]. However, he asked them not to disclose that information and said he would not enter it into the public court record until late Tuesday evening [March 14 2023].

One person familiar with the case, which is being heard in federal court in Amarillo, Texas, said such steps were “very irregular,” especially for a case of intense public interest.

On March 14 2023, CNBC’s coverage of the upcoming hearing included purported justifications Kacsmaryk offered to the case’s parties during the March 10 2023 conference, citing a transcript of the call:

Judge Matthew Kacsmaryk of the U.S. Northern District of Texas held a telephone conference with attorneys in the case on [March 10 2023] in which he set oral arguments for Wednesday [March 15 2023]. But Kacsmaryk asked the attorneys not to publicize the hearing, citing security concerns.

“And because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” Kacsmaryk told the attorneys, according to a court transcript of the conference call.

“This is not a gag order but just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received … We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better,” Kacsmaryk said, adding that he didn’t want an “unnecessary circus-like atmosphere.”

NBC News published an article about the hearing, quoting experts on First Amendment protections and courtroom transparency. Reporting that news of the hearing came to light through a Washington Post article, the NBC story mentioned a lawyer representing a media coalition who “wrote in a [March 13 2023] letter to Kacsmaryk that his reported decision not to make the hearing schedule public well in advance was unconstitutional” to all interested parties:

The lawyer, Peter B. Steffensen of the Southern Methodist University’s First Amendment Clinic, cited a report over the weekend [of March 10 2023] by The Washington Post …

“The Court’s attempt to delay notice of and, therefore, limit the ability of members of the public, including the press, to attend [the March 15 2023] 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 [March 15 2023] hearing harms “everyone, including those who support the plaintiffs’ position and those who support the defendants’ position,” he added.

According to the cited transcript, Kacsmaryk claimed (without any supporting evidence) that “threats” and potentially disruptive protests informed his failed attempt to conceal the March 15 2023 hearing. On March 14 2023, an account on Reddit’s r/prochoice inadvertently demonstrated another possible motive, “outrunning” the news. In a post best described as a warning, the commenter urged others to obtain “mifepristone plus misoprostol” by mail ahead of the hearing:

The foreshadowing points to the extremist Texas judge deciding in favor of the anti-abortion group in the frivolous lawsuit against the FDA’s decision in 2001 to approve mifepristone for safe and effective abortion care. And as this article suggests, it could be this week – maybe even on Wednesday [March 15 2023]!

Women – it’s your last chance to pre-order the pills (mifepristone plus misoprostol) for an extremely safe and effective medication abortion. His decision could be on [March 15 2023]. So, if you’re in a blue state, get your OBGYN to QUICKLY order the pills for you, if they’ll do advanced provision. If not, then consider AidAccess.org — which will send the pills to anyone, anywhere after a virtual consultation. (I personally spoke with the Belgian physician who founded AidAccess, and she says her organization is prepared for a huge increase in people from the U.S. requesting the pills).

Also, as horrible as this judge’s decision could be — taking away mifepristone from half a million women who maybe in need of it in 2023 – it’s not the only way to have a medication abortion. Research shows that 3 or 4 misoprostol pills can do the same thing. It’s slightly less effective and has slightly more discomfort/symptoms. But that pill has been around for many decades, and it’s used by people with ulcers, so it will be more difficult for any lawsuit against it to prevail.

Where I live, free speech about abortion care still is legal — unlike Texas. But, nonetheless, my advice comes with disclaimer: I am neither an attorney nor a physician. My suggestion is not intended, nor should it be treated, like legal or medical advice.

On March 14 2023, several Reddit posts addressed claims that United States District Judge Matthew Kacsmaryk of Texas attempted to hide the scheduling of a March 15 2023 hearing concerning the FDA’s authorized use of mifepristone as an abortifacient from the general public. CNBC cited a transcript of the March 10 2023 call, during which Kacsmaryk articulated his intent to conceal the March 15 2023 hearing from the general public. Consequently, interest in the hearing skyrocketed, in a scenario described as “the Streisand effect” in one legal analysis.

Update, September 8 2023, 3:59 PM:

On September 8 2023, Danco laboratories (a maker of mifepristone) filed a petition requesting that a lower court’s ruling on the medication be reviewed by the Supreme Court.

It was not immediately clear whether the Court would agree to the request.