These GOP AGs want us to know efforts to block mifepristone access is not going away

Two stories out of the Northern District of Texas: One about Matthew Kacsmaryk and abortion, and the other about Reed O'Connor and his stocks.

Although the U.S. Supreme Court spoke with unusual unanimity in a hot-button case this past term in tossing out the challenge to the medication abortion drug mifepristone on standing grounds, the case is now back in front of U.S. District Judge Matthew Kacsmaryk and it’s not clear he’s ready to be done with it yet.

Kacsmaryk sits in the Northern District of Texas, and is one of two extreme-right judges assigned to single-judge divisions — locales where 100% of the cases filed there are assigned to them. As such, conservatives — from Texas to business interests in D.C. and elsewhere — have flocked to Amarillo and Wichita Falls to file ideological, far-right cases. Appeals are then heard by the U.S. Court of Appeals for the Fifth Circuit, arguably the furthest-right appeals court in the country.

In the mifepristone challenge, where the plaintiffs are represented by the far-right Christian legal advocacy organization Alliance Defending Freedom, the Supreme Court did not mince words about how Kacsmaryk and the Fifth Circuit handled the case.

“[T]he federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” Justice Brett Kavanaugh wrote for the unanimous court back in June.

And yet.

After the case went through its formal process of making its way back to the district court “for further proceedings consistent with this opinion,” the parties filed a report that Kacsmaryk had ordered when he put the case on hold back in January after the Supreme Court agreed to take up the case.

In addition to the Alliance for Hippocratic Medicine, represented by ADF, three Republican-led states — Missouri, Kansas, and Idaho — sought to intervene in the case, long after Kacsymaryk issued his initial ruling in the case attempting to block the approval of mifepristone nationwide. Kacsmaryk granted that intervention.

In the September 30 joint status report, the federal government stated that they “believe that no further proceedings are necessary or warranted in this case.“ Danco Laboratories, the maker of Mifeprex, agreed, explaining, “Because there was never Article III jurisdiction over Plaintiffs’ complaint, there was also never a jurisdictionally valid action into which anyone could intervene. As a result, this litigation should be over.”

Then there are the plaintiffs and the intervening states. They argue that Kacsmaryk can keep hearing the case because “the Supreme Court decided only whether the private plaintiffs amassed enough evidence to prove standing for the preliminary injunction, not whether their complaint should be dismissed.”

Going further still, the states — represented by Missouri Attorney General Andrew Bailey, Kansas Attorney General Kris Kobach, and Idaho Attorney General Raúl Labrador — announced their plan “to file an amended complaint,” noting that it would “provide updated facts that support Intervenor-Plaintiffs’ existing theories of standing.”

The question before Kacsmaryk, then, is both theoretical and yet simple: If there was no valid case before Kacsmaryk because the Alliance for Hippocratic Medicine and the other original plaintiffs lacked standing, in what “case” did the states intervene?

And, as the federal government argued in the status report, “[T]he State Intervenors’ claims cannot proceed as an independent suit because the States cannot satisfy venue requirements (and the States also independently lack standing).“ In other words, Missouri, Kansas, and Idaho couldn’t have brought their case in Amarillo without the underlying lawsuit existing.

On October 11, however, after no action from Kacsmaryk, the states filed their motion for leave to file that amended complaint. The proposed amended complaint is almost twice as long as the initial complaint filed by the states almost a year ago.

Notably, and as noted in the joint status report, the proposed amended complaint removes requests for relief that would end the original 2000 approval of mifepristone altogether. The proposed amended complaint, however, does continue to seek relief that would revert access of mifepristone back to pre-2016 rules — which, among other changes, would reverse the generic drug approval and revert to the in-person dispensing requirement. It also adds a handful of new claims.

[Note: Jessica Valenti at Abortion, Every Day wrote that she will have a full analysis of the claims made in this expanded proposed complaint.]

Regardless of whether Kacsmaryk tries to keep the case in front of him, the filing from the attorneys general of Missouri, Kansas, and Idaho does two things: It sends a very clear message that the challenge to mifepristone is not done, and it lays out what that challenge will look like.

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N.D. Tex., Part II: O’Connor edition

Back in August, U.S. District Judge Reed O’Connor — the judge who hears all of the Wichita Falls cases — recused himself from a case brought by Elon Musk’s X Corp. (formerly Twitter) in Wichita Falls against a group of advertisers that X alleges organized a “boycott” to stop advertising on the site.

As Law Dork has previously reported, O’Connor appeared to have done so due to the fact that his extensive individual stock holdings included one of the companies that X was suing — Unilever PLC — despite questions that have been raised (including here at Law Dork) about how O’Connor’s investment history has repeatedly entangled himself with Musk and his companies.

The case was reassigned to U.S. District Judge Ed Kinkeade. Both judges were George W. Bush appointees to the federal court.

Notably, O’Connor did not recuse himself from a similar lawsuit against the advertising group brought by Rumble, a video-sharing company. (He also kept overseeing a different lawsuit brought by X Corp. that I’ve written about here, this one against Media Matters, after the organization published reports critical of the company.)

But then, on September 20, Rumble amended its complaint. Among the changes was the addition of Diageo PLC, a global alcoholic beverage company, as a defendant.

A couple weeks later, on October 9, O’Connor recused himself from the case. No specific reason was given, with the docket entry, “Court Request for Recusal: Judge Reed C. O'Connor recused.”

However, according to O’Connor’s 2023 financial disclosure report, which was only made public recently, O’Connor owned Diageo stock at the end of 2023. This ownership, however, was present on his 2022 financial disclosure report as well, which had been publicly available when Rumble amended its complaint.

When I showed this to Fix the Court’s Gabe Roth, he told me that this highlighted multiple problems circling around O’Connor’s extensive stock ownership.

“There's no justification for federal judges owning individual stocks. If that was true in years past, it's especially true now, as judge-shopping and forum-shopping become more prevalent,” he told Law Dork. “That a party could force the recusal of a judge who they believe might be disinclined to rule for them simply by adding a company to the complaint — a company whose shares the judge happens to own — is a cynical yet completely legal form of practice.”

Of course, it’s not even clear that Rumble had such a concern here.

“It should be frowned upon, of course, and possibly sanctioned,” Roth added, “but I see judges and their inability to simply divest from stocks and buy ETFs when they get confirmed as an equal part of the problem.”

O’Connor, per his 2023 financial disclosure, owned individual stock in well over 150 companies, including Diageo PLC.

So, what happened next?

In the October 9 docket entry in the Rumble lawsuit, it stated, “Pursuant to instruction in Special Order 3-249, the Clerk has reassigned the case to Judge Ed Kinkeade for all further proceedings.”

It’s not exactly clear why the case went to Kinkeade. Under the order referenced, the case should have been randomly assigned within the district because O’Connor is the only judge assigned cases in the Wichita Falls division.

Although it is possible “the court's random case assignment system” could have resulted in Kinkeade being picked, there were many other judges who could have gotten the case — even Democratic appointees. But, it went to Kinkeade.

Then, two days after all of that happened, X Corp. dismissed Unilever from its lawsuit on October 11.

That same day, the advertisers association being sued in both cases filed a “notice of related case” in both cases.

In sum, the most direct reason for O’Connor’s recusal from the X Corp. case is gone, there is now a reason for his recusal from Rumble’s case, and the advertisers being sued are seeking to keep the cases together.

I honestly don’t know what it all means, but it’s clearly a mess, and O’Connor’s extensive stock ownership is either to blame for it or the excuse for causing it — or some combination of the two.