AMARILLO, Texas (AP) 鈥 A federal judge overseeing a high-stakes case that could threaten access to medication abortion across the nation asked lawyers for the 鈥渃ourtesy鈥 of not publicizing upcoming arguments, according to a court record released Tuesday that reveals new details of a move experts say is outside the norm for the U.S. judicial system.
U.S. District Judge Matthew Kacsmaryk 鈥 who was appointed by former President Donald Trump and is known for conservative views 鈥 by telephone on Friday that because the case has prompted death threats and protests, 鈥渓ess advertisement of this hearing is better,鈥 according to a transcript of the meeting.
鈥淎nd because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,鈥 Kacsmaryk said, according to the transcript. 鈥淭his 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.鈥
Kacsmaryk did not specify who made threats.
鈥淲e want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better,鈥 the judge said in asking lawyers not to tweet about the hearing so that the court could avoid 鈥渁ny unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding.鈥
The judge said he planned to issue an order setting the hearing late on Tuesday, one day before the hearing in Amarillo, a Texas Panhandle community that has few direct flights and is more than four hours drive from the nearest major city. Kacsmaryk ultimately issued the order Monday, after reported on his attempt to keep the hearing under wraps.
Protests are now planned in Amarillo Wednesday, with the Women's March advocacy group urging people to rally outside the federal courthouse wearing judge and kangaroo costumes to decry Kacsmaryk.
Terry Maroney, a professor at Vanderbilt University Law School who studies federal judges, said they often have security concerns in high-profile cases, but Kacsmaryk's handling of such worries was unusual.
鈥淚 have not heard of anybody doing this,鈥 Maroney said of Kacsmaryk seeking to delay public notice of the hearing. 鈥淚t does strike me as unusual and not proper.鈥
Maroney said that while Kacsmaryk noted his request to avoid publicity was not an order, most lawyers would nonetheless be inclined to obey when a judge frames a request as a matter of safety. 鈥淚t functionally operates as a gag order,鈥 she said.
University of Oklahoma law professor Joseph Thai called it 鈥渄eeply concerning鈥 for a federal judge to try to keep the public in the dark.
鈥淭he fact that the Trump-appointed judge is deciding a highly political question, potentially denying millions of women across the country a safe and effective abortion pill, makes it all the more critical to ensure public notice and access to the hearing at which their rights will鈥攐r will not鈥攂e heard," Thai said. 鈥淣othing less than the legitimacy of the judicial branch is at stake.鈥
The closely watched lawsuit is challenging the U.S. Food and Drug Administration's more than 20-year approval of the drug mifepristone, one of two drugs used in medication abortions which account for more than half of the abortions in the U.S.
The suit was filed by a group that helped challenge Roe v. Wade, which the , stripping away women鈥檚 constitutional protections for abortion.
Impacts of a ruling against the FDA could take years to play out. It could affect states regardless of whether abortion is legal there.
Arthur Hellman, a professor at the University of Pittsburgh School of Law, said that if Kacsmaryk had issued a gag order the lawyers could have appealed it but there was no avenue for judicial review of his requesting their silence "as a courtesy.鈥 鈥淚t gives rise to the appearance that he鈥檚 trying to keep the hearing, somehow, secret," said Hellman. "It just looks bad.鈥
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Bleiberg reported from Dallas.
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