Law firms aiding staffers to secure abortions in post-Dobbs world see possible risks and rewards
As America’s culture wars intensify, the post-Roe landscape is possibly an even hotter legal battlespace than any seen before. As some law firms moved to help employees with reproductive health aid, blowback was swift from politicians hostile to abortion rights, with some even threatening to disbar those firm’s lawyers.
Just days after the Dobbs v. Jackson Women’s Health Organization decision was published, a host of major firms announced they’d pay travel costs for staff seeking abortions who live in states where abortion is restricted or banned. According to Reuters, Bloomberg and Law.com, these firms include Ropes & Gray, Morrison & Foerster, Mayer Brown, Quinn Emanuel Urquhart & Sullivan, Akin Gump Strauss Hauer & Feld, Proskauer Rose, Sidley Austin, Cozen O’Connor, Dorsey & Whitney, McDermott Will & Emery, Morgan Lewis & Bockius, Vinson & Elkins and others.
According to a spokesperson, Akin Gump chairperson Kim Koopersmith offered a firmwide message on the day Dobbs was decided, noting, “As one of few women leading a major law firm, I understand the expectation that I will share my thoughts.”
Koopersmith said she was 14 when Roe was decided. “For nearly 50 years, we have had the ability to make decisions on the path our lives will take and to have access to the full range of health services in the most personal of decisions. From today forward, some of us will continue to have those options and others won’t. Geography, wealth, and race will be largely determinative. For many of us, that feels deeply unfair and difficult to absorb.
“Today, I offer my understanding to those of you who are feeling profound distress in the loss of a right that has been recognized as fundamental for a half century.”
ABA President Reginald Turner also released a statement after the Dobbs verdict, saying the ABA supports reproductive choice and opposes the criminal prosecution of any person for having an abortion. The association had submitted an amicus brief in the case urging that Roe v. Wade and the right to abortion be upheld.
Law firms that embroil themselves in culture war skirmishes balance risk and reward, though outcomes are hard to predict. Many firms exited Russia when it invaded Ukraine; those that didn’t were called out online by law professors at Harvard, Stanford and Yale at a site titled “Law Firms and Russian Profits.” When same-sex marriage was on the line, big firms calculated that defending traditional marriage was a loser both for attracting new clients and hiring new lawyers.
Now, in the politically charged Dobbs climate, law firms’ pro-choice reactions drew immediate praise from women’s rights groups that have long lobbied for strong gender equity protections.
“Our dual mission is to advance women in the profession and for equality under the law,” says Karen Richardson, executive director of the National Association of Women Lawyers. “It’s great to see the move to support reproductive health at law firms. I’m also excited to see several of our partnering firms announce they’ll support the taking of pro bono clients without restrictions, so their lawyers will have carte blanche to use firm resources to represent people working to make changes that will help us all.”
The positive reviews got immediate backlash from conservative lawmakers in Texas who threatened to disbar any lawyer who aids in the violation of the state’s anti-abortion statutes. “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,” began the letter from the Texas Freedom Caucus to Sidley chair Yvette Ostolaza.
The letter, which accused Sidley of appearing to be “complicit in illegal abortions,” promised legislation that will impose additional civil and criminal sanctions on law firms that pay for abortions or abortion travel; will allow private citizens to sue anyone involved in those payments; and will empower any district attorney in Texas to prosecute abortion-related crimes when the local DA won’t. The lawmakers told Sidley to preserve records relating to abortions it had already “illegally assisted.” Firm spokespeople did not return messages or declined to comment on the Freedom Caucus letter.
It was unclear why the Freedom Caucus singled out Sidley.
Meanwhile, Missouri lawmakers are studying a bill that would enforce abortion restrictions through civil lawsuits if the abortion occurs outside the state.
At the White House, a spokesperson for President Joe Biden called the Texas lawmakers’ threat against Sidley “punitive” and “extreme.”
Reuters pointed out that one of the letter’s signers, a state representative from Texas’ 25th District, Cody Vasut, is of counsel at the Houston offices BakerHostetler, a Sidley rival.
Vasut, BakerHostetler and Sidley did not return messages from the ABA Journal seeking comment. BakerHostetler told Reuters that Vasut’s political activity was unconnected to the firm. “His affiliation with the Texas Freedom Caucus is in a personal capacity and solely related to his legislative role,” firm chairman Paul Schmidt said.
Then Vasut’s page was removed from the firm’s website.
Clare Pastore, a professor of the practice of law at the University of Southern California Gould School of Law, sees the Freedom Caucus letter as an opportunity. “It’s unbelievable, staggering and inflammatory to openly call lawyers murderers,” she says, “and it hands to Sidley on a silver platter standing to challenge Texas’ anti-abortion law.”
She adds that the Texas Freedom Caucus “has given Sidley precisely the concrete and personal stake in the Texas law that standing doctrine demands.” If the caucus makes good on its promise to pass a statute targeting law firms, “Sidley is in a good position to bring an affirmative case challenging it.” And the letter also opens a path for the firm to sue over Texas’ underlying “Heartbeat Act”—a statute that is supposedly challenge-proof due to its private citizen enforcement provision. “The Freedom Caucus letter promises direct state involvement in the form of criminal prosecution and bar discipline, which tees up the constitutional issues much more cleanly” for successful litigation, Pastore says.
More struggles ahead
Alison Taylor, executive director of Ethical Systems at the NYU Stern School of Business points to the political clash as one factor in firms’ calculus as they offer abortion aid. Another is talent retention. “Law firms already face considerable problems with female attrition, so they really need to attract and retain women over the long term,” she says.
Taylor also notes that the post-Dobbs landscape could help firms determine where to open up shop and operate. “It is easy to imagine that firms and companies will begin to sort more geographically, further escalating polarization and the already dangerous divisions that America is experiencing,” she says.
The president of California Women Lawyers, Ana Storey, urges further progress. “American law firms still have far to go to achieve equality for women in their partner and leadership ranks,” she says. “But women would not have made the progress we have achieved over the last 50 years had we not had the constitutional right to control our own reproductive choices. CWL appreciates the efforts of firms that are acting to support and protect women’s bodily autonomy and privacy rights.”
Litigation is likely over law firms’ pro-choice policies, says Caleb Mason, a former federal prosecutor and a current partner at Werksman Jackson & Quinn in Los Angeles. For example, he points out that California just passed legislation providing that no “bounty law” judgment in other states shall be enforced in California courts.
The situation calls into play the Constitution’s full faith and credit clause, which requires states to recognize judgments from other states, and the extradition Clause, which obligates states to send accused criminals back to the jurisdictions where they face charges. “It is naïve, in my humble opinion, to imagine that that law is not going to be challenged in federal court by plaintiffs from other states,” he says. “So smart lawyers need to get working on arguments defending it.”
John Roemer is a legal affairs journalist in California.
Updated on July 27 to include the ABA president’s statement and the association’s position.