By Joseph DeBonis, JHBL Staff Member
Since the Affordable Care Act (“ACA”) was passed on March 23, 2010, it has been subject to copious challenges in federal courts, which have challenged everything from the constitutionality of the program to the specifics of how medications are distributed.[1] But litigants have discovered a key advantage that will weigh the scales of justice in their favor: The Northern District of Texas.[2] The Northern District of Texas has become the choice venue for litigants to bring civil challenges to federal programs, and the increasingly conservative federal bar has established a reputation for ruthlessly gutting the Affordable Care Act and Title X to advance the conservative political agenda.[3] By judge-shopping in the small federal courthouses of the Northern District of Texas, conservative litigants are handed decisions they are almost certain will survive appeals to the Fifth Circuit and Supreme Court.[4]
The Affordable Care Act was passed with the explicit goals to make affordable health insurance available to more people by providing subsidies to households that fall below the federal poverty level, expand the Medicare program, and support innovative healthcare delivery methods to lower healthcare costs.[5] During the open enrollment period of 2023, sixteen million Americans signed up for ACA coverage, representing a 13% increase from the previous year alone.[6] The ACA was the most significant healthcare legislation passed since Medicare and Medicaid in 1965. The ACA retains the fragmented healthcare systems that define the healthcare industry in the United States with the goal of making the mix of state, federal, and employment-based programs more accessible.[7]
Forum shopping, or judge shopping occurs when a litigant “[a]ttempts to have his or her action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgement or verdict.”[8] While forum shopping at a higher level is permissible (such as removing a case to federal court from state court), the Supreme Court has generally discouraged forum shopping in order to maintain a defendant’s right to have their case heard by a federal judge tied to their community.[9] Chief Justice John Roberts, in a 2021 End-of-Year Fiscal Report called upon the federal Judiciary Conference to address the forum-shopping issues in patent cases.[10] Roberts observed that 25% of all patent cases were heard in front of one judge in Waco, Texas, and threatened the need for random case assignment to protect litigants.[11] The Waco division of the Western District of Texas has only one full-time judge, which ensures that this judge will hear the plaintiff’s case.[12] According to a Columbia Law School Human Rights Law Review article published in 2018, there are eighty-one federal divisions spread across 30 district courts in which one or two judges hear every case.[13]
The Northern District of Texas covers over 100 counties in the northern and central parts of Texas and is split between seven different court divisions.[14] Between these seven courts, divisions, twelve full-time judges hear criminal and civil cases arising across the 100 counties.[15] Congress has permitted district courts to divide up cases as they see fit. Some districts have chosen to randomize or spread-out cases to avoid litigants judge-shopping.[16] The Northern District of Texas takes advantage of this Congressional permission.[17] However, in five of the seven different divisions that make up the Northern District of Texas, a single judge hears most or all the cases.[18] By choosing to bring suit in a specific division that has one or two judges hearing all cases, litigants are essentially ensuring that their case will be heard by one specific judge.[19]
Judge Reed O’Connor was appointed to the Northern District of Texas by former President George W. Bush in 2007 and hears 85% of all cases filed in his division of the district court.[20] O’Connor assumption of the bench was a cause célèbre for Texas’s conservative Attorneys General, as O’Connor’s vocal presence in the Federalist Society, reputation for hard work in the Senate Judiciary Committee, and boldness to take on government programs make him the perfect jurist to file a suit challenging a government program.[21] In his first major attack on the Affordable Care Act, O’Connor ruled that the individual mandate was unconstitutional, but was later overruled in a 7-2 decision by the Supreme Court.[22] While the ruling drew sharp criticism for its “naked judicial activism,” O’Connor cemented himself as judge willing to publish momentous challenges to the ACA.[23] O’Connor has gone on to challenge the ACA’s nondiscrimination provisions, its contraceptive coverage requirement, and insurance provider fees imposed on states.[24]
In Judge O’Connor’s most recent ACA ruling, he found that conservative employers in Texas do not have to provide employees with free coverage of preventive health services such as mammograms, colonoscopies, mental health screenings, and the HIV prevention drug PrEP if it violates the employer’s religious beliefs.[25] The suit was brought by Braidwood Management and other similarly aligned small businesses, who successfully argued that covering these services make them “complicity in facilitating homosexual behavior, drug use, and sexual activity outside the marriage between one man and one woman.”[26] Specifically, O’Connor ruled that the Preventive Services Task Force (PSTF) violated the Appointments Clause of the Constitution, rendering their mandates to cover preventive health services unconstitutional.[27]
Fellow Northern District of Texas Judge Matthew Kacsmaryk has an even more outspoken history criticizing LGBT+ rights, protections for women’s health, marriage equality, and the ACA.[28] A founding member of Texas Federalist Society lawyer’s chapter in 2012, Kacsmaryk’s open distain for transgender and gay Americans made him the perfect choice to fill an opening in the District Court in 2020 by former President Trump.[29] Judge Kacsmaryk openly opposed Section 1557 of the ACA, which extended the non-discrimination mandate in federal health care to gender identity and sex stereotyping, calling the mandate “radical self-definition and sex-actualization.”[30] Kacsmaryk even as far to say in 2015 that LGBT+ rights and reproductive freedom are premised on a “lie” that resulted from “the erotic desires of liberated adults.”[31]
In Deanda v. Becerra in late 2022, Kacsmaryk ruled in favor of a conservative Christian father by striking down a Title X provision that permitted adolescents to receive confidential family planning services.[32] Kacsmaryk’s incorrect analysis of the plaintiff’s standing, federal preemption, and parental rights under Due Process led to him finding for the plaintiff.[33] A win for conservative Christians, Kacsmaryk’s decision perfectly aligns with his own personal views of Christianity and reproductive rights, making the decision clear before it was even published.[34]
Kacsmaryk and O’Connor represent two of the twelve full-time judges in the Northern District of Texas making deliberate swipes at the Affordable Care Act and other legislation designed to protect the health of the country’s most vulnerable. Shrewd litigants judge-shopping techniques guarantee favorable rulings against democratic legislation and institutions they find unacceptable. With an increasingly conservative Fifth Circuit and Supreme Court likely to side with decisions coming out of the Northern District of Texas, the danger of forum-shopping has never been greater down in the northern and central parts of Texas. Chief Justice Roberts may have called out the blatant judge-shopping in patent cases, but without action by the federal Judicial Conference to fight judge-shopping as it relates to the ACA, the legislation will be a skeleton by the end of the decade.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources
[1] See Examining the Affordable Care Act, Focusing on the Impact of Health Insurance Reform on Health Care Consumers: Hearing on H.R. 3590 Before the S. Comm. On Health, Education, Labor, and Pensions, 112th Cong. 8-10 (2011) (statement of Kathleen Sebelius, Secretary, U.S. Dept. of Health and Human Services) (explaining motivations of passing the ACA); Affordable Care Act (ACA), HealthCare.gov, https://www.healthcare.gov/glossary/affordable-care-act/ (last visited Oct. 9, 2022) (explaining key goals of passing ACA according to bill glossary); 42 U.S.C. § 18001 (2010) (providing immediate access to the uninsured, main body of ACA).
[2] See Steve Vladeck, Texas judge’s Covid mandate ruling exposes federal ‘judge-shopping’ problem, MSNBC (Jan. 11, 2022), https://www.msnbc.com/opinion/texas-judge-s-covid-mandate-ruling-exposes-federal-judge-shopping-n1287324.
[3] See Braidwood Mgmt. v. Becerra, _F.Supp.3d_ (N.D. Tex. 2022); Deanda v. Becerra, _F.Supp.3d_ (N.D. Tex. 2022).
[4] See Steve Vladeck, supra note 2.
[5] See See Examining the Affordable Care Act, Focusing on the Impact of Health Insurance Reform on Health Care Consumers: Hearing on H.R. 3590 Before the S. Comm. On Health, Education, Labor, and Pensions, 112th Cong. 8-10 (2011) (statement of Kathleen Sebelius, Secretary, U.S. Dept. of Health and Human Services) (explaining motivations of passing the ACA); Affordable Care Act (ACA), HealthCare.gov, https://www.healthcare.gov/glossary/affordable-care-act/ (last visited Oct. 9, 2022) (explaining key goals of passing ACA according to bill glossary).
[6] See Affordable Care Act, Nearly 16 Million People Have Signed up for Affordable Health Coverage in ACA Marketplaces Since Start of Open Enrollment Period, Center for Medicare and Medicaid Services (Jan. 11, 2023), https://www.cms.gov/newsroom/press-releases/nearly-16-million-people-have-signed-affordable-health-coverage-aca-marketplaces-start-open#:~:text=Nearly%2016%20Million%20People%20Have,of%20Open%20Enrollment%20Period%20%7C%20CMS.
[7] See Manny Fernandez, In Weaponized Courts, Judge Who Halted Affordable Care Act is a Conservative Favorite, The New York Times (Dec. 15, 2019), https://www.nytimes.com/2018/12/15/us/judge-obamacare-reed-oconnor.html.
[8] See Legal Information Institute, forum shopping, Cornell Law School (Dec. 2022), https://www.law.cornell.edu/wex/forum_shopping#:~:text=Forum%20shopping%20refers%20to%20the,between%20courts%20in%20separate%20countries.
[9] See Charles P. Pierce, How Judge-Shopping Has Turned the Judiciary into a Rubber Stamp for Nonsense, Esquire (Feb. 6, 2023), https://www.esquire.com/news-politics/politics/a42776208/judicial-venue-shopping-courts/.
[10] See Federal Judiciary, 2021 Year-End Report on the Federal Judiciary, Supreme Court of the United States (2021), https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf.
[11] See id.
[12] See Charles P. Pierce, supra note 9.
[13] See Alex Botoman, Divisional Judge-Shopping, 49 Colum. Human Rights L. Rev. 297, 319 (2018).
[14] See United States Distrist Court Northern District of Texas, US Courts, https://www.txnd.uscourts.gov/ (last visited Apl. 4, 2023).
[15] See id.
[16] See Blake Brittain, U.S. Chief Justice Roberts pledges to review patent venue rules, Reuters (Jan. 2, 2022), https://www.reuters.com/legal/transactional/us-chief-justice-roberts-pledges-review-patent-venue-rules-2022-01-03/.
[17] See id.
[18] See Matt Ford, Republicans Keep Turning to the Same Texas Judges to Block Biden’s Policies, The Soapbox (Mar. 15, 2022), https://newrepublic.com/article/165730/northern-district-texas-judges-block-biden-policies.
[19] See id.
[20] See id.
[21] See Peter Sullivan, Federal Judge in Texas strikes down ObamaCare, The Hill (Dec. 14, 2018), https://thehill.com/policy/healthcare/421511-federal-judge-in-texas-strikes-down-obamacare/.
[22] See id.
[23] See Devlin Barrett, Legal experts rip judge’s rationale for declaring ObamaCare law invalid, The Washington Post (Dec. 15, 2018), https://www.washingtonpost.com/world/national-security/legal-experts-rip-judges-rationale-for-declaring-obamacare-law-invalid/2018/12/15/9cab3bb8-0088-11e9-83c0-b06139e540e5_story.html.
[24] See Tierney Sneed, Judge notorious for anti-Obamacare rulings has another crack, CNN (Jan. 28, 2022), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html.
[25] See Braidwood Mgmt. v. Becerra, _F.Supp.3d_ (N.D. Tex. 2022) at 45.
[26] See id. at 40.
[27] See id. at 45.
[28] See Vanita Gupta, Oppose the Confirmation of Matthew Kacsmaryk to the U.S. District, The Leadership Conference on Civil and Human Rights (Dec. 12, 2017), https://civilrights.org/resource/oppose-confirmation-matthew-kacsmaryk-u-s-district-court-northern-district-texas/.
[29] See id.
[30] See id.
[31] See id.
[32] See Deanda v. Becerra, _F.Supp.3d_ (N.D. Tex. 2022) at 4.
[33] See id. at 25.
[34] See id. at 26.