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Texas Two-Step: Big Law’s Silence on Abortion

Sept. 24, 2021, 4:02 PM

Law firms are fickle. One minute they treat me like a queen, offering me first dibs on their latest awesome women’s initiative or a cozy chat with their “star” partner. And the next minute—when I ask them a simple question—they’re avoiding me like an unvaccinated relative at Thanksgiving dinner.

Right now, I’m getting the silent treatment. I’ve contacted over 25 Big Law firms—mainly Texas-based ones (e.g., Baker & Botts and Vinson & Elkins) and those with big presence in the state (e.g., Skadden Arps, Latham & Watkins, and Kirkland & Ellis)—about what they plan to do about the state’s draconian anti-abortion law. Known as SB8, the law allows anyone to sue an abortion provider or those who “aid and abet” an abortion.

My question was direct: Will your firm be taking a stand on the law, such as providing pro bono work, contributing to organizations like Planned Parenthood or making a statement condemning SB8?

The handful or so that agreed to speak on the record are the usual suspects—liberal stalwarts such as Debevoise & Plimpton, Paul Weiss, and Susman Godfrey—which are taking the lead in collaborating with the Center for Reproductive Rights to provide pro bono representation. Dechert also stated that it’s challenging abortion restrictions in Oklahoma which has seen an “uptick in requests for legal assistance following the TX ruling.” And Weil Gotshal notified me that it’s filed an amicus brief opposing Mississippi’s abortion law that challenges Roe v. Wade.

Leaders of two other firms—women, I might add—also got back to me. Gibson Dunn chair Barbara Becker says her firm is “figuring out our best avenue to make an impact,” adding that it’s working with the Center for Reproductive Rights and the National Women’s Law Center. Wilson Sonsini chair Katie Martin emphasizes that her firm “has been supportive of women’s rights and women’s health initiatives for many years”—and “we remain committed to these efforts.”

Though most firms I contacted are mum, Susman Godfrey partner Rick Hess assures me, “there are a lot of individual lawyers [from firms all over the country]—more than a 100—who have said they will help.”

Whoopee.

While it’s nice that individual lawyers are stepping up, that’s not the same as throwing the weight of the institution behind the cause. If firms are hawking women’s empowerment (and what major firm isn’t?), shouldn’t they take a stand on an issue that directly affects women’s autonomy? Firms can’t be all in for women’s rights without addressing what’s going on in Texas, particularly if they’re making money in that state.

What galls me is that firms are so good at making grand statements about fighting the good fight—when it’s convenient and safe. What major firm hasn’t hitched onto the social justice movement and made impassioned statements about racial equality this past year? And in April, over 60 firms, joined by hundreds of corporations and individuals, took out a two-page ad in the New York Times, boldly titled “We Stand for Democracy,” protesting voting restriction laws. (Most of the firms I contacted are ones that signed that statement and have offices in Texas.)

If firms care so much about racial equality and justice, shouldn’t they also be speaking out about the Texas law which will hit poor women, particularly minority women, the hardest? According to the Guttmacher Institute, about 70% of abortions in Texas in 2019 were provided to women of color. While the women of Big Law and their sisters can hop on a plane to get a safe abortion, that’s not so easy for less privileged women.

“This [law] is devastating for women, particularly women of color,” says Debevoise partner Shannon Selden. “Childbirth for them is dangerous,” alluding to the high mortality rate among Black women in Texas. (According to the Texas Medical Association, Black women account for 37.1 deaths per 100,000 live births, while non-Hispanic White women make up 14.7.) “The medical community views abortion as a safe part of medical care, and women need to be able to talk to their doctors about pregnancy risks.”

Yet, Big Law seems to miss (or dismiss) the connection between abortion, gender equality, and racial justice. “It’s disappointing but I’m not surprised,” says a senior partner at a top Texas firm about his firm’s refusal to support challenges to SB8. The firm “has not traditionally done pro bono for Center for Reproductive Rights or Planned Parenthood, but we’re not jumping in to represent First Liberty [an anti-choice group] either—thank God.” Firm management, he explains, “thinks abortion is too divisive; it’s the third rail.”

So why is abortion so much more contentious than racial justice at this moment? While it’s easy for firms to stand for racial justice, especially in the aftermath of the graphic murder of George Floyd, it’s trickier to advocate for abortion rights. We can’t point to a contemporary image of a woman who’s died of a botched abortion—at least, not at this point—to make real the consequences of the Texas law.

But there’s another reason for the hesitancy—and I’d argue the primary one—and that’s the client. “I think our firm is overwhelmingly pro-choice, but we’re concerned about the clients,” says a Dallas-based female partner of a major firm. “We’re not going to make a statement [about SB8] but we tell our lawyers to go for it if they want to do pro bono to oppose it.”

I don’t doubt that supporting abortion triggers strong emotions but are firms missing the bigger picture and letting a vociferous minority dictate policy?

In a Quinnipiac University poll released on September 15, 62% of Americans support the right to abortion in all cases or most cases, while only 32% say abortion should be illegal in most cases or all cases. And that support is likely stronger among those with college degrees. According to a recent poll by research company PerryUndem, as first reported by Forbes, 66% of college-educated workers said they would not take a job in a state that prohibits abortionsafter six weeks and about 50% said they would move out of a state with such restrictions.

That last poll should make partners recruiting for their Texas office rethink their firm’s stance (or lack of one) on the issue. “Probably a majority of our lawyers are pro-choice, especially as more and more of them come from outside of Texas,” says the male partner at the Texas-based firm, adding, ”if I were a woman I’d ask about the firm’s commitment to this kind of issue.” And considering that women now outnumber men—54.09% v. 45.70%—in ABA-approved law schools, law firms should wake up and smell the coffee.

But why do I have to make these arguments to make major firms connect the dots? Honestly, it shouldn’t be this hard to speak up and show women you give a damn.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

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