How NC’s judge panels could become the country’s future after abortion pill case

Anti-abortion groups knew when they filed a lawsuit in northern Texas against the Biden administration for approving the abortion pill mifepristone that they would almost certainly be assigned a sympathetic judge.

A North Carolina congresswoman is saying that shouldn’t be allowed to happen again.

Rep. Deborah Ross, a Democrat from Wake County, filed a bill that requires a three-judge panel to preside over any case seeking nationwide relief.

In April, federal District Judge Matthew Kacsmaryk sided with plaintiffs in removing the U.S. Food and Drug Administration’s approval of mifepristone, which would have made the medication unavailable throughout the country had appeals courts not intervened. Mifepristone can be used with a second medication to terminate early-stage pregnancies, but can also be used to treat Cushing’s syndrome, uterine fibroids and endometriosis.

Prior to becoming a judge, Kacsmaryk worked for the First Liberty Institute, a Christian nonprofit, where he argued in court against a Washington law that required pharmacies to carry contraception.

Plaintiffs in the mifepristone case knew that 95% of civil cases filed in northern Texas ended up before Kacsmaryk.

With Republicans controlling the House, Ross may struggle to get support for her legislation, the Fair Courts Act. She said she has been talking with Republicans trying to garner support from across the aisle for the bill. But Ross said she wanted to level the playing field by proposing the system, which is partially modeled after one used in North Carolina.

“The mifepristone case was just an example of extreme judge shopping, but it happens on both sides,” said Ross, who serves on the House Judiciary Committee. “It’s not like this is something unique to just conservatives.”

Emerged from North Carolina redistricting cases

In the early 2000s, a Democratic-led legislature chose to use three-judge panels to decide lawsuits involving redistricting cases or facial constitutional challenges. Facial constitutional challenges argue that a law, in its entirety, violates the constitution.

It began after Democrats accused their Republican colleagues of challenging 2001 and 2002 district maps in front of Johnston County Superior Court Judge Knox Jenkins knowing he would be sympathetic toward them. Jenkins, indeed, threw out both maps.

“As a reaction to that, the legislature set up the system we have now, where three judges are appointed to hear any redistricting case to do the fact-finding, so that you can’t go and find the one judge,” Ross said.

Now, redistricting cases are required to be heard in Wake County, in front of the Wake County chief resident Superior Court judge, and the three judges must come from the state’s three regions. There is pending legislation that would lift the first two rules.

Wake County Chief Resident Superior Court Judge Paul Ridgeway said when the legislation first passed, his colleagues were skeptical of both how it would work and the need for it.

“I would say that certainly my view on it has changed over time,” Ridgeway said. “I certainly think that it has its place for important issues before the court, like in North Carolina: its facial constitutional challenges and redistricting cases.”

Ridgeway said those types of cases are typically fairly significant court cases. He said it’s been beneficial to have three judges who collaborate and discuss the case, the law and the evidence.

“I think the judges take it very seriously,” Ridgeway said. “I like to think that all judges take cases very seriously, but when you’re collaborating with your colleagues and you’re discussing the case and trying to reach a decision on it, I think in my experience on these cases, these are ones that we carefully deliberate on what our position is going to be.

“And I do think it’s a good buffer against political influence.”

What the judge shopping bill would do

Ross said her bill wouldn’t prevent Republican organizations from filing lawsuits in the 5th Circuit, the most conservative, or Democratic groups from filing in the 9th Circuit, the most liberal. But having a three-judge panel would stop a plaintiff from choosing a specific judge for the case.

In Ross’ bill, one of the three judges must be a circuit court judge. It requires certain federal cases to be randomly assigned to judges within a district or state so that litigants can’t hand pick special judges.

The bill specifies that civil cases must be randomly assigned to judges within a district so that no judge has a greater chance than 25% of hearing a case. In cases like Kacsmaryk’s, in which there are few judges in a district, alternative rules must be established for that district to ensure fairness.

It also requires transparency on a district court’s website in explaining how cases are assigned to judges.

“America was founded on the principle of equal justice under law, and the impartiality of judges and our court system is paramount to that fundamental promise,” Ross said. “Nobody should have the power to choose who decides their case, especially when the ruling will have widespread consequences for all Americans.”

Concerns about details of judge shopping bill

Ridgeway said he had not learned about Ross’ bill until McClatchy reached out to him for comment. And he has some concerns based on the implementation of the North Carolina law that he hopes federal lawmakers think through before passing the legislation.

First he believes it is very important that lawmakers clearly explain in the bill what cases qualify for this process. He said in North Carolina, lawmakers and judges quickly learned that the term “facial constitutional challenge” wasn’t easily defined and said one of the challenges for federal lawmakers will be making it very clear for attorneys drafting pleadings what qualifies to go before this type of panel.

Ridgeway said legislators also had to tinker with procedural rules. He said federal lawmakers should decide early on whether the three-judge panel needs to hear every element of the case or if a single judge could hear preliminary issues leading up to the trial.

Another consideration is whether judges would need to write out their opinions. For Ridgeway, he thinks it’s helpful because it gives judges a chance to explain their decision to the public, and if there’s a disagreement, allows the opposing judge to offer an explanation.

Senate bill

Ross isn’t alone in fighting for this new legislation.

Sen. Ron Wyden, a Democrat from Oregon, filed a mirroring bill in the Senate. Wyden said no one judge should have that kind of power. He added that today we might be talking about mifepristone, but tomorrow it could be birth control.

“It’s fundamentally unjust for a special interest group to play hopscotch with American courts in search of one biased judge predisposed to rule for them,” Wyden said in a news release. “And it’s alarming that one rogue judge in Amarillo, Texas – or anywhere – can make sweeping decisions that could harm millions of Americans.”