Texas Judge Known for Abortion Pill Ruling Backs Biden ESG Rule

Judge Matthew Kacsmaryk, who has proven a reliable roadblock to Biden administration policies, became an unexpected savior of its climate-friendly investing rule for retirement plans.

Kacsmaryk, a Donald Trump-appointed federal trial court judge in the Northern District of Texas, has rejected efforts by the administration to protect asylum seekers and expand teen access to birth control and widespread access to medication abortions.

But in a Sept. 21 opinion, he concluded the administration’s investment rule—which states that fiduciaries may consider environmental, social and governance, or ESG, factors when managing retirement 401(k) accounts— didn’t violate administrative law.

It was an unanticipated outcome from Kacsmaryk, who has become a magnet for conservative litigants challenging Biden policies, particularly when it comes to hot button social issues. On the same day he ruled in favor of the investment rule, Kacsmaryk refused to grant relief to Texas college students blocked from hosting a drag show.

In the retirement plan case, Kacsmaryk said while he is “not unsympathetic” to the states’ concerns about ESG investment trends, the court “need not condone ESG investing generally or ultimately agree with the Rule to reach this conclusion.”

Victor Flatt, an environmental law professor at the Case Western Reserve University School of Law, said he thought Kacsmaryk had applied the law correctly to what he described as a “weak” challenge to the investment rule.

The ruling also exposes the limits of forum-shopping, or the practice of filing lawsuits in courts perceived to be friendly to a plaintiff’s cause, he said.

Judge Shopping

Kacsmaryk is the only judge in the Northern District’s Amarillo division and has been assigned 95% to 100% of cases filed there since joining the court. That’s led Republican state attorneys general and other lawyers to frequently make it their venue of choice.

In the ESG rule litigation, the Labor Department cited judge shopping as an argument for moving the case from Kacsmaryk’s court to another district court, or at a minimum another division where more than one judge is assigned cases.

“Forum shopping has its limits,” Flatt said. “The Fifth Circuit’s conservative. The Northern District of Texas is conservative. But in certain cases, things are very straightforward.”

While upholding the ESG rule, Kacsmaryk struck a different tone on drag shows. He called drag a “vulgar and lewd” form of “sexualized conduct” likely to harm children.

Kacsmaryk had earlier rejected a policy blocking doctors from discriminating against people based on their sexual orientation or gender identity.

Rachel O’Leary Carmona, executive director of Women’s March who is based in Amarillo, said she wasn’t surprised to see Kacsmaryk rule in favor of the Biden administration in the investment case, but consistently against the administration on hot-button topics including LGBTQ rights and access to abortion and birth control.

“He is an activist on certain issues and not on other issues,” she said. “The issue of trans identity is one of the issues that he is an activist on, the other one isn’t. It doesn’t surprise me there isn’t a clear political line there.”

Flatt also noted the way the judge applied administrative law in the ESG case represented a “departure” from how Kacsmaryk applied the law in separate high-profile litigation over the abortion pill.

In April, Kacsmaryk blocked the Food and Drug Administration’s (FDA) approval of mifepristone, a key drug used in medical abortions, after finding the government had exceeded its authority in greenlighting it. His opinion was filled with phrases like “unborn human” and “chemical abortion” often invoked by the anti-abortion movement.

“I think in his decision on mifepristone that it was not a straightforward of administrative law, at least not completely, and there was a lot of inflammatory language that didn’t need to be used in that case,” Flatt said. The ESG case “was very different. It was just straightforward.”

Earlier Work

Kacsmaryk’s role at a conservative religious liberties legal group prior to his 2019 confirmation prompted opposition from LGBTQ rights groups concerned about his ability to be impartial on the bench.

That work for the First Liberty Institute has made Kacsmaryk a magnet for conservative litigants pressing “hot button, divisive social issues,” Stephen Vladeck, a University of Texas at Austin School of Law professor, told Bloomberg Law earlier this year.

During his December 2017 confirmation hearing, Sen. Richard Blumenthal (D-Conn.) questioned Kacsmaryk about an amicus brief he and other lawyers had filed on behalf of religious organizations two years earlier as an attorney for First Liberty in the Supreme Court’s landmark same-sex marriage case.

The brief had urged the high court not to permit same-sex marriage nationwide, warning such a ruling would place the nation on “a road to potential tyranny” and “inexorably result in additional violations of free speech rights.”

Asked if judges ever apply their religious beliefs to decisions, Kacsmaryk told the Senate panel that judges “should not” and that it would be “inappropriate for an Article III judge to do so.”

Hiram Sasser, executive general counsel at First Liberty, defended his former colleague against criticism that he lets his faith influence his decision-making. Sasser described Kacsmaryk as “careful,” “methodical,” and “a great gut check for our organization to make sure that we were following the law properly.”

Since taking the bench, Kacsmaryk has earned a reputation for ruling against major Biden policies.

In addition to mifepristone, Kacsmaryk ruled in 2021 that the administration didn’t have the authority to rescind the so-called “Remain in Mexico” policy. That’s a Trump-era program requiring asylum seekers to wait in Mexico for decisions in their US immigration cases, and ordered the administration to reinstate it.

The Supreme Court ruled 5-4 that the administration could legally end “Remain in Mexico” and sent the case back to Kacsmaryk. In December, Kacsmaryk again ruled against the Biden administration’s memo ending the migration program, but the Mexican government has signaled it is not willing to continue the policy.

That same month, Kacsmaryk also ruled against a Biden administration rule that barred federal family planners from informing parents when their children request birth control or related services.

—With assistance from Lydia Wheeler.