Within two months of Mississippi adopting one of the nation’s most-restrictive abortion laws, Paul Weiss partner Claudia Hammerman was working with reproductive rights groups to stop it in court.
“I jumped at the opportunity to protect the last abortion clinic in Mississippi and support the courageous doctors who fly in from out-of-state to provide abortion care to the women of Mississippi,” the New York-based Paul Weiss partner said.
The law approved in March that would prohibit abortion at six weeks, before many women even realize they’re pregnant, was blocked by a federal judge. But Hammerman says the case is far from over.
Paul Weiss is one of several Big Law firms that have dedicated pro bono hours to fight a flurry of new abortion laws that opponents say will limit access to reproductive health care. While reproductive rights organizations typically lead on litigation, these lawyers play a key role in getting the work done. They provide resources, expertise, and behind-the-scenes help.
In addition to Paul Weiss, firms that routinely provide such pro bono assistance include O’Melveny & Myers, Morrison & Foerster, Debevoise & Plimpton, Covington & Burling, and Stinson.
Some attorneys have been involved in disputes over reproductive rights for years. But the cases making headlines now could be the most consequential in the fight over abortion rights since the 1973 Supreme Court decision in Roe v. Wade that legalized the practice.
Alabama, Missouri, Louisiana, Georgia and Ohio are among states that have approved measures this year to outlaw or severely restrict abortions once a fetal heartbeat can be detected at between 6 to 8 weeks. Critics of the bans, including the president of The American College of Obstetricians Gynecologists, have called the bills misleading because what is often called a fetal heartbeat is actually electrical activity in a developing embryo.
None of those bans or other, similar state laws also aimed at restricting abortion have gone into effect yet, and some are facing court challenges or waiting for legal cases to play out elsewhere. But the litigation is the point: abortion opponents hope the restrictions lead to an opportunity for the fortified conservative Supreme Court majority to overturn Roe.
“The heart of this bill is to confront a decision that was made by the courts in 1973 that said the baby in the womb is not a person,” Alabama lawmaker Terri Collins said at a hearing to discuss that state’s measure.
Abortion cases have become increasingly fact-heavy in recent years, making law firm participation even more critical. They can offer the legal heft that public interest organizations may not have, Morrison & Foerster pro bono counsel Jennifer Brown said.
“We can send people around the country on planes to depose people without thinking about it too much,” she said.
Jamie Levitt, co-chair of Morrison & Foerster’s complex commercial litigation practice and former chair of its pro bono committee, estimates that the firm has provided assistance in contraception and abortion-related matters for more than 25 years.
“We look at it as a human rights issue and a health issue,” she said.
But as state-level abortion restrictions have increased, reproductive rights groups have responded with a slew of new legal challenges.
“The cases that O’Melveny has been taking on have picked up in recent years,” said partner Leah Godesky. “Right now it just kind of seems like every day we’re putting out new fires.”
For instance, it recently helped the ACLU Reproductive Freedom Project block an restrictive abortion law in Kentucky, and won a temporary restraining order against the state’s six-week abortion ban.
The firm also is litigating alongside the Center for Reproductive Rights, ACLU, and Planned Parenthood to block a slew of targeted restrictions on abortion providers (TRAP laws) in Virginia.
“It’s been a really discovery heavy case, the kind of thing that O’Melveny loves to sink our teeth into,” said Godesky.
Debevoise also has its arms full with litigation. The firm is co-lead trial counsel with the Center for Reproductive Rights in a challenge to outpatient facility licensing laws in Louisiana that it argues are unnecessary and restrict access to abortion care.
In addition, the firm has a substantial amicus practice, representing medical organizations like the The American College of Obstetricians and Gynecologists and American Medical Association, according to partner Shannon Rose Selden.
“I’m happy to litigate these cases,” said Selden. “I wish we didn’t have to. But the ability to choose whether and when to have children and with whom is essential to so many of the other choices that women and girls make in their lives.”
Collaboration Tops Competition
In many abortion-related cases, attorneys from Big Law firms work together.
“One of the things about working with true subject matter experts at the ACLU and other organizations is that they’re frequently involved in other litigation around the country and they can coordinate efforts with other groups as needed, so we’re all sharing intel and strategy,” said Godesky.
Planned Parenthood is currently suing Missouri’s health department, which has refused to renew the license of the only remaining abortion clinic in the state. Lawyers from Stinson are arguing that case, but Paul Weiss has provided additional support behind the scenes.
Collaboration has produced results. Numerous Big Law firms played a critical role in the 2016 Supreme Court decision Whole Woman’s Health v. Hellerstedt, which blocked two Texas law provisions for creating an undue burden on abortion access.
The case was argued by lawyers from Morrison & Foerster and the Center for Reproductive Rights, while attorneys from Simpson Thatcher, Skadden, and other firms represented various amici.
Lawyers from Paul Weiss authored a particularly influential amicus brief in which 113 female attorneys shared their own abortion stories with the Supreme Court.
“It was a new and stirring effort to speak lawyer-to-lawyer to the justices,” explained Levitt.
It’s unclear whether Big Law firms have publicly represented any anti-abortion groups. When it comes to state-level abortion restrictions, most of the opposing parties are state health departments and other government agencies, which typically use their own litigators.
Iowa, for instance, enlisted the Thomas More Society last year, to defend its heartbeat law. The group is a non-profit public interest law firm “dedicated to restoring respect in law for life, family and religious liberty,” according to its website.
The group also litigates against states. Thomas More attorneys will be “at the heart” of any action brought against Illinois over a recent law that expanded access to abortion, according to a spokeswoman.
No large law firm represented Texas or amici supporting that state in Whole Woman’s Health.
But attorneys who work on these cases said in interviews that that it was unlikely Big Law firms would publicly support anti-abortion positions, given the political leanings of young associates entering the workforce.
“Generally in the legal industry and legal market, we work very hard for the inclusion of women and minorities,” said Selden. “It would be hard for me to imagine a firm that would take a view that’s not supportive of women in its ranks.”
“There’s definitely reticence” among some firms to jump into the center of abortion politics, however, according to MoFo’s Jennifer Brown.
For firms wary of the political spotlight, representing amici can be a less risky way to reproductive rights without directly representing a clinic in a direct legal challenge.
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