Texas GOP group warns that Sidley partners could be prosecuted if the firm pays abortion travel costs
Eleven members of the Texas House of Representatives signed the letter sent by the Texas Freedom Caucus.
At least one BigLaw firm with offices in Texas has received a letter warning that its partners are breaking the law by facilitating abortions that are illegal in the state.
The letter was sent to Sidley Austin by the Texas Freedom Caucus, a group of Republican state lawmakers, report Bloomberg Law, Law.com and Reuters. The Texas Freedom Caucus posted the letter on Twitter.
The letter begins: “It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children.” To the extent Sidley is facilitating illegal abortions, “it is exposing itself and each of its partners to felony criminal prosecution and disbarment,” the letter says.
The letter cites a never-repealed law enacted before Roe v. Wade that bans abortion in the state, with exceptions to save the life of the mother. Texas Attorney General Ken Paxton is supporting enforcement of the law.
According to the letter, the pre-Roe law makes it a felony for any person to furnish “the means for procuring an abortion knowing the purpose intended.” The letter claims the criminal prohibition extends to ban medication abortions if any part of the drug regimen is taken in Texas.
Sidley told its employees in a June 29 memo reviewed by the ABA Journal that the firm would continue to provide assistance in obtaining legal abortions by its employees and those covered by the employees’ health plans. The firm said it would reimburse abortion-related travel and “if necessary, related legal-defense expenses for our employees, regardless of their state of residence,” according to the memo, which was issued after the Supreme Court overturned Roe v. Wade.
Several BigLaw firms are covering travel costs for employees who need to travel to other states to obtain abortions. Other firms with offices in the state that have pledged to cover travel costs include Vinson & Elkins; Morgan, Lewis & Bockius; and McDermott Will & Emery, according to Reuters.
Texas has two other laws regarding abortion. Its trigger law bans abortions in most circumstances with an effective date of 30 days after the Supreme Court issues its final judgment in the decision overturning a right to abortion, Dobbs v. Jackson Women’s Health Organization. The judgment is issued about a month after the decision is released to allow for consideration of any motion for a rehearing.
Texas also has a state law banning abortions after a fetal heartbeat is detected, which occurs around six weeks of pregnancy. The law authorizes lawsuits by private parties who make seek $10,000 in damages against anyone who violates the law.
The Texas Freedom Caucus letter says it appears that Sidley may have aided or abetted drug-induced abortions in violation of the state heartbeat law by paying for abortions, or at least for abortion travel costs. The letter asks Sidley to place a litigation hold on documents and electronically stored information related to such abortions because of litigation that is already underway.
The letter says GOP lawmakers will also introduce legislation in the next session that would impose additional civil and criminal sanctions on law firms that pay for abortions or abortion travel.
The proposed law would:
• Ban any employer in Texas from paying for elective abortions or reimbursing abortion-related expenses. Felony criminal sanctions would be imposed.
• Allow private citizens to sue anyone who pays for an elective abortion performed on a Texas resident, or anyone who pays for or reimburses related costs. The law would apply to both in-state and out-of-state abortions.
• Require the State Bar of Texas to disbar any lawyer who violated the criminal law banning abortions. If the state bar fails to act, any member of the public could sue for a writ of mandamus compelling discipline.
• Empower district attorneys to prosecute abortion-related crimes if the local DA fails to act. The law would eliminate the three-year statute of limitations governing abortion prosecutions.
Hat tip to communications strategist Sawyer Hackett, who posted the letter in a tweet.