A Texas judge presiding over a challenge to the Federal Drug Administration’s approval of a common abortion medication restricted public and press knowledge of a hearing by delaying putting it on the docket, or public schedule, and requesting attorneys involved in the case not publicize or draw attention to it.
U.S. District Court Judge Matthew Kacsmaryk told attorneys during a March 10, 2023, conference call that he would delay entering the March 15 hearing in Amarillo on the docket until the evening before, according to The Washington Post, which first reported the story. He also asked the attorneys for the “courtesy” of not sharing information about the hearing until then.
According to the Post, hearings are normally quickly placed on the docket and delays are highly unusual.
In a transcript of the call obtained by The Associated Press, Kacsmaryk said that the case — which could have national implications for medical abortion access — had sparked protests and prompted death threats and harassing phone calls to the courthouse.
“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” Kacsmaryk said, according to the transcript. “We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”
Judges have significant discretion over how they run their cases and there are no national policies or rules dictating when hearing notices need to be posted, the AP reported.
Both outlets reported concerns that delayed scheduling would prevent the public and press from being able to attend the hearing, as Amarillo is located hours from all major cities in Texas.
A coalition of media outlets and press freedom advocates, which included the Post and multiple Texas-based newspapers, filed a letter objecting to the delay on March 13.
“The Court’s attempt to delay notice of and, therefore, limit the ability of members of the public, including the press, to attend Wednesday’s hearing is unconstitutional, and undermines the important values served by public access to judicial proceedings and court records,” the letter read. “The Court cannot constitutionally close the courtroom indirectly when it cannot constitutionally close the courtroom directly.”
Within hours of the letter being sent, the hearing was placed on the docket.
Freedom of the Press Foundation Advocacy Director Seth Stern echoed the coalition's objections, and said he was glad to see the hearing getting plenty of publicity despite the judge’s unconstitutional efforts.
“A ‘courtesy’ request to not publicize a hearing is a gag order by another name,” Stern said. “Lawyers won’t risk upsetting the judge deciding their case.”
As of publication, Kacsmaryk has not issued a ruling on the request to pause the availability of the drug, which was at issue in the March 15 hearing. NPR reported that a few dozen members of the press and public were allowed inside the courtroom, while small groups of demonstrators gathered outside.