Column: How right-wing judges in Texas are erasing Americans’ rights everywhere
You might have thought that, more than a dozen years after its enactment, the Affordable Care Act was finally safe from interference by right-wing judges carrying water for religious fanatics and anti-government activists.
Unfortunately, a ruling from a one-horse federal courtroom in Texas reminds us that there’s almost an endless supply of those litigants and the judges who run with them. Less than two weeks ago, U.S. Judge Reed O’Connor invalidated an ACA provision mandating that a long list of preventive care services be provided to patients without co-pays or deductibles.
If O’Connor’s March 30 ruling stands (the government is certain to appeal), it would block no-fee preventive services such as breast- and cervical-cancer screenings for millions of women, smoking cessation programs, hepatitis tests, screening for diabetes, osteoporosis, depression, HIV and many other conditions and health risks.
A court oversteps its authority when an injunction does more than benefit the plaintiffs who have sued.
— Law professors Nicholas Bagley and Samuel Bray
The anti-HIV provision, as it happens, was the principal target of the plaintiffs in this case. Among them are Steven Hotze, a self-described Christian owner of a “wellness” center who complained that the Affordable Care Act mandate to provide anti-HIV drugs would “facilitate behaviors such as homosexual sodomy, prostitution, and intravenous drug use — all of which are contrary to Dr. Hotze’s sincere religious beliefs.”
Hotze also objects to other preventive-care mandates that require his business’ health plans to cover screening for and counseling about sexually transmitted diseases “for those engaged in non-marital sexual behavior.”
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O’Connor’s ruling undermines one of the bedrock public-health features of the Affordable Care Act, its encouragement of services aimed at keeping Americans healthy by catching signs of developing medical issues before they require costly interventions.
Sadly, the ruling didn’t come as much of a surprise: Not only did O’Connor telegraph his decision during hearings on the lawsuit months ago, but he’s the same judge who in 2018 tried to throw a monkey wrench into Obamacare by declaring the entire law unconstitutional.
The Supreme Court slapped him down with a 7-2 ruling upholding the act’s constitutionality in 2021, but that didn’t seem to invest O’Connor with any measure of humility.
O’Connor’s latest ruling underscores a major problem with America’s federal judicial system. That’s the ability of hack judges in backwater courthouses to interfere with policy by issuing nationwide injunctions based on specious or at least shallow legal arguments.
“A court oversteps its authority when an injunction does more than benefit the plaintiffs who have sued,” Nicholas Bagley of the University of Michigan and Samuel Bray of Notre Dame wrote in 2018, when the practice began to proliferate.
Nationwide injunctions, they argued, encourage “forum shopping.”
“Because a litigant only has to win in a single court to stop the implementation of a congressional statute or agency rule,” they wrote, “he has a huge incentive to pick a jurisdiction where he’s likely to win.”
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That’s exactly what’s been happening, with Texas federal courts having become the epicenter of such judicial activism, thanks largely to multiple anti-Biden campaigns by Texas Atty. Gen. Ken Paxton.
The rules governing venues among federal courts are, on the surface, straightforward. Plaintiffs are expected to have a reason to choose a particular location, perhaps because they live in the judicial district or their case involves activities that took place there.
But things are not that simple. Underlying Paxton’s filings is the notion that the state as an entity resides in all the federal judicial districts within its borders and therefore it can properly file its lawsuits in any of them.
That assertion, however, merely skates over the fundamental cynicism of Paxton’s strategy. Texas is unusual in having a surfeit of federal courthouses with only one or two sitting judges — in many cases former President Trump-appointed judges with a distinct conservative outlook.
It’s true that forum-shopping is neither illegal nor practiced exclusively by conservative litigants. Blue states and liberal litigants typically filed cases challenging Trump administration policies in districts where they had hopes of landing a progressive-oriented judge, such as the Northern District of California, headquartered in San Francisco.
That district, however, has 21 judges assigned among three courthouses, not all of whom could be described as liberal. Filing a case there improves the odds of getting it in front of a sympathetic judge but doesn’t guarantee it.
All 28 of Texas’ lawsuits against the Biden administration, on the other hand, have been filed in one of “just seven divisions where local rules severely limit the number of judges to whom the cases could be assigned,” the Department of Justice observed in asking federal judge Drew Tipton to relinquish an immigration case filed in his court in Victoria, Texas, where Tipton is the only sitting federal judge.
Those included 18 lawsuits filed in divisions where the case “would necessarily be assigned to a single pre-determined judge.” There was no way to explain the state’s decision to file the case in Victoria, where Tipton, a Trump-appointed judge, presides over all cases, “other than judge-shopping.” Tipton thus far has refused.
The Biden administration has begun to fight back against Texas judge-shopping. In addition to its motion before Tipton, it has filed motions for transfers in two other cases.
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One involves a lawsuit Paxton filed in February to invalidate the $1.7-trillion omnibus spending bill signed by Biden in December.
That measure included aid to Ukraine; disaster relief for victims of Western wildfires and southeast tornadoes, hurricanes and floods; strengthening of federal election law to forestall any attempts to overturn votes such as those threatened in the Jan. 6 insurrection; and other investments.
That case landed before Trump appointee James W. Hendrix, who hears about two-thirds of the cases in his Lubbock courthouse. The administration has asked Hendrix to transfer the case either to Washington, D.C., where the spending bill was enacted, or Austin, where Paxton’s office is.
The second motion asks Judge Matthew Kacsmaryk, also a Trump appointee, to transfer a case challenging Biden administration policies allowing fiduciaries overseeing retirement accounts to consider “environmental, social and governance” factors, known as ESG, in judging the prudence of pension fund investments.
The government accused the plaintiffs, who include Texas and 25 other mostly red states, of “gamesmanship” that “undermines public confidence in the administration of justice.” The motion asked to transfer the lawsuit to Washington, D.C., Austin or Salt Lake City (Utah is technically the lead plaintiff). Kacsmaryk refused.
The problem of nationwide injunctions is magnified by the likelihood that conservatives filing in one- or two-judge court divisions will obtain a preordained result.
Consider the absurdity of a lawsuit filed in November seeking a ban on the abortion medication mifepristone. Anti-abortion activists filed the case in Amarillo, knowing it would surely come before Kacsmaryk, who presides over every civil case brought in that courthouse.
On Friday, Kacsmaryk nullified the 2000 approval of mifepristone by the Food and Drug Administration, asserting that the FDA’s approval was illegal and that the drug could be used to produce an illegal abortion. He did not order the drug off the shelves immediately, but his decision could ultimately result in outlawing the drug nationwide. He stayed his ruling for seven days to give the government time to file an emergency appeal. The government filed a notice of appeal late Friday.
Complicating the situation, also on Friday federal Judge Thomas O. Rice of Spokane issued a preliminary injunction prohibiting the FDA from “altering the status quo and rights” related to the availability of mifepristone. The federal court system now has two diametrically opposed opinions on the drug’s legality. Rice ruled on a motion brought by 17 states and the District of Columbia.
Kacsmaryk appears to be the quintessential known quantity. Before joining the bench, he served as a lawyer for a Christian conservative legal group that filed anti-abortion cases, among others.
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In just the last few months, according to Reuters, Kacsmaryk blocked Biden’s plan to end the Trump-era “remain in Mexico” immigration policy that kept asylum-seekers from crossing the U.S. border, ruled against administration policies protecting LGBTQ people from workplace discrimination, and overturned a federal program allowing minors to obtain free contraceptives without parental consent.
That brings us back to O’Connor’s ruling on the Affordable Care Act’s preventive-care mandate. As many as 150 million Americans have taken advantage of the mandate by obtaining the covered services without paying an out-of-pocket fee.
O’Connor’s order doesn’t apply to all mandated preventive care services. It applies to those designated as “highly recommended” by the U.S. Preventive Services Task Force, a volunteer expert body that the Affordable Care Act tasked with making those recommendations, and specifically the services recommended after March 23, 2010.
O’Connor specifically barred free provision of pre-exposure prophylaxis, or PrEP, drugs administered to people at high risk of HIV infection. Forcing health plans to cover those drugs without co-pays or deductibles, he wrote, infringes on the plaintiff’s religious freedom because they “believe that (1) the Bible is ‘the authoritative and inerrant word of God,’ [and] (2) the ‘Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct.’ ”
A right-wing judge with an established anti-Obamacare record accepted a tendentious interpretation of the biblical “word of God” to deny accessible and affordable healthcare to the entire country. That makes the danger of expansive injunctions, as they’re produced by Trump-appointed judges in Texas, crystal clear.
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