Texas Two-Step: Big Law’s silence on abortion

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Law firms are fickle. One minute, they’re treating me like a queen, giving me a first glimpse of their latest awesome female initiative or a cozy chat with their ‘star’ partner. And the next minute, when I ask them a simple question, they avoid me like an unvaccinated parent at Thanksgiving dinner.

At the moment, I am receiving the silent treatment. I contacted over 25 large law firms, mainly those based in Texas (e.g. Baker & Botts and Vinson & Elkins) and those with a strong presence in the state (e.g. Skadden Arps, Latham & Watkins and Kirkland & Ellis) – on 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 “help and encourage” an abortion.

My question was direct: Will your company take a stand on the law, for example by providing volunteer work, contributing to organizations like Planned Parenthood, or making a statement condemning SB8?

The few people who have agreed to speak officially are the usual suspects – liberal mainstays such as Debevoise & Plimpton, Paul Weiss and Susman Godfrey – who take the initiative to work with the Center for Reproductive Rights to provide pro bono representation. Dechert also said he is challenging abortion restrictions in Oklahoma, which has seen an “increase in requests for legal assistance as a result of the TX decision.” And Weil Gotshal informed me that he filed an amicus brief opposing the Mississippi abortion law that challenges Roe vs. Wade.

The heads of two other companies – women, I should add – also answered me. Gibson Dunn President Barbara Becker said her firm “was looking for our best way to make an impact,” adding that it was working with the Center for Reproductive Rights and the National Women’s Law Center. Wilson Sonsini President Katie Martin says her cabinet “has supported initiatives for women’s rights and women’s health for many years” and “we remain committed to these efforts.”

Although most of the firms I have contacted are my mother, Susman Godfrey’s partner Rick Hess assures me, “There are a lot of individual lawyers. [from firms all over the country]- over a hundred – who said they would help.

Whoops.

While it is nice to have individual lawyers come together, it is not the same as putting the weight of the institution behind the cause. If business is peddling women’s empowerment (and what big business isn’t?), Shouldn’t they be taking a stand on an issue that directly affects women’s empowerment? Businesses can’t stand up for women’s rights without taking an interest in what’s going on in Texas, especially if they’re making money in that state.

What annoys me is that companies are so good at making big statements about fighting the good fight, when it’s convenient and safe. What great company has not joined the social justice movement and made some passionate statements about racial equality last year? And in April, more than 60 companies, joined by hundreds of businesses and individuals, ran a two-page ad in the New York Times, boldly titled “We Stand for Democracy,” protest against voting restriction laws. (Most of the companies I have contacted are the ones that have signed this statement and have offices in Texas.)

If companies care so much about racial equality and justice, shouldn’t they also be talking about the Texas law that will hit poor women the hardest, especially minority women? According to the Guttmacher Institute, about 70% of abortions in Texas in 2019 were performed on women of color. While Big Law women and their sisters can fly to have an abortion safely, it is not so easy for less privileged women.

“This [law] is devastating for women, especially women of color, ”says Shannon Selden, partner of Debevoise. “Childbirth is dangerous for them,” alluding to the high death 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 considers abortion a safe part of medical care, and women should be able to talk to their doctors about the risks of pregnancy.”

Yet Big Law appears 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 large Texas firm of his firm’s refusal to support the SB8 challenges. The company “has not traditionally done pro bono for the Center for Reproductive Rights or Planned Parenthood, but we do not step in to represent First Liberty [an anti-choice group] either – thank God. Company management, he explains, “thinks abortion creates too many divisions; this is the third rail.

So why is abortion so much more controversial than racial justice right now? While it is easy for businesses to defend racial justice, especially in the wake of the blatant murder of George Floyd, it is more difficult to defend abortion rights. We can’t point to a contemporary image of a woman who died of a botched abortion – at least, not at this point – to make the consequences of Texas law real.

But there is another reason for the reluctance – and I would say the main one – and that is the customer. “I think our firm is overwhelmingly pro-choice, but we are concerned about clients,” says a partner at a large Dallas-based firm. “We are not going to make a statement [about SB8] but we tell our lawyers to go if they want to voluntarily oppose it.

I have no doubt that abortion support triggers strong emotions, but are companies missing the big picture and letting a vocal minority dictate their policy?

In a Quinnipiac University survey published on Sept. 15, 62% of Americans support the right to abortion in all or most cases, while only 32% say abortion should be illegal in most or all cases. And this support is probably strongest among university graduates. According to a recent poll by research firm PerryUndem, as first reported by Forbes, 66% of college graduate workers said they would not take jobs in a state that bans abortions after six weeks and about 50% said they would leave a state. with such restrictions.

This latest survey should lead partners recruiting for their Texas office to rethink their company’s position (or lack thereof) on the issue. “The majority of our attorneys are probably pro-choice, especially since more and more of them are coming from outside of Texas,” says the Texas-based firm’s partner, adding, “If I was a woman, I would ask questions about the firm’s commitment to this kind of issue. And given that women now outnumber men – 54.09% versus 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 for big companies to make the connection? Honestly, it shouldn’t be that hard to talk to and show women that you care.


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