On March 10, Judge Matthew Kacsmaryk in the northern district of Texas gathered the lawyers in a banner case on mifepristone, the abortion drug, to tell them of an upcoming hearing — that he was keeping secret.
TPM has obtained, and is first to report, the transcript from the status conference, which was conducted over the phone.
The case centers on the Food and Drug Administration’s 20-year-old approval of mifepristone, a drug often prescribed with misoprostol to induce abortions. Anti-abortion groups are trying to get that approval revoked, which could send the drug’s availability into flux.
After some typical housekeeping, Kacsmaryk leans on the lawyers to keep the hearing quiet.
“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” he said. “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.”
He said that the case so far has brought “a barrage of death threats and protesters and the rest.”
“So we will have standard security protocols in place, but I’ll just ask as a courtesy that you not further advertise or Tweet any of the details of this hearing so that all parties can be heard and we don’t have any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding,” he added.
He then told the lawyers that he was going to purposefully keep the hearing off the docket until the day before the hearing, to keep it as under the radar as possible — a move that prompted questions and objections by observers when discovered. A Department of Justice lawyer on the call sought clarification about whether the hearing would be made public at some point Tuesday.
“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” Kacsmaryk replied. “So it may even be after business hours, but that will be publicly filed.”
After news of the call became public, Kacsmaryk ultimately docketed the hearing on Monday evening. The court also announced Tuesday afternoon that it would livestream Wednesday’s hearing, a change from its original posture of only allowing the public to listen if people attended in person.
Late last week, court watchers noticed that a number was skipped on the docket, which usually indicates a sealed filing. Then news broke over the weekend of the Friday call, which was first reported by the Washington Post. The hearing in the case is still set for Wednesday.
Read the transcript here: