Lawyers will fight to preserve women’s rights

Eleven members of the Texas legislature, all members of the ill named Freedom Caucus, have declared war on the American legal profession. They threatened a prestigious law firm, which has their home office in another state, with criminal prosecution for paying expenses of a pregnant lawyer to travel to a state where abortion is allowed. We could dismiss this threat as based on a delusion as to their power because they also support the delusion that the last Presidential election was stolen. Unfortunately, they believe they have powerful allies - including 6 Justices of the U S Supreme Court and the Texas Supreme Court that just revived a 1925 Texas statute that forbids all abortion except in cases to save the mother. The 11 legislators promised to pass legislation creating criminal sanctions to enforce that old law. There are already statutes the Texas Attorney General interprets as allowing prosecution of people in other states. However, Governor Gavin Newsom of California opposes extradition to Texas in those prosecutions. The Texas 11 should focus on the great difficulty of instructing another state what their law should be.

A few statistics: The Texas legislature currently has 150 house members, and 31 senators. Half are white males; 48 of 181 are women and one-third are attorneys. In the largest law firm in Texas, 60% of the lawyers are women. The firm was recently listed among 60 firms that are good places for women to work. The increasing status and power of these women is quite different then the early days experienced by some judicial and political officials when men believed they could order women to have babies. However, during the 50 years of Roe, millions of women planned their lives with the easy assumption of constitutionally protected choice. What now?

Lawyers all over the United States are asking what overruling Roe means. Women, men, doctors, health professionals and anyone who assists a person to obtain an abortion will need a lawyer. A legal chaos of unanswerable questions exists at many levels. If a large firm has an office in a state prohibiting abortion, can they help their people obtain an abortion in an open state? Can a close relative pay expenses for a family member to obtain an abortion? Have they committed a crime? Criminal defense lawyers are researching the law of aiding and abetting in Texas. In California, hospital personnel are deeply concerned about the anticipated inundation of patients coming to the state for abortions amidst the flood of Corona virus patients. It is possible or even likely that prohibitions forbidding gay marriage, contraception and sexual relationships between people of the same sex will now be passed by some state legislatures as test cases? It is clear that there are some in Texas who would vote to take us back into that chamber of bias and hate. Many lawyers are getting ready to represent people being set upon by officials animated by the demand for their dictated conformity. I will just mention a few.

I have known too many good Texas citizens, especially lawyers, to hate anyone. Some great and famous Texas trial lawyers have set a standard for insisting on fairness and justice with a willingness to face down the mob. The criminal lawyers of Texas, as they always do, will make new arguments. They do what they do every day, fight as hard as they know how. Some Texas bar associations will speak out about the legal needs of citizens and prosecutorial excesses. Texas volunteer lawyers will step in for the many who have no lawyer.

Organizations dedicated to help support and defend victims in the post Roe period have sprung up across the country. In New York, the Attorney General created a pro bono committee to defend those who need counsel. Jamie A. Levitt of Morrison Foerster is chair of one committee. In San Francisco, Mary McNamara of Swanson and McNamara, the president of the Bar Association of San Francisco, is one of the founders of a growing national coalition that now has 60 participating law firms pledged to help those in need because of the repeal of their right to abortion. Two thousand six hundred and fifty women partners in law firms signed a call to action. That powerful juggernaut should not be ignored by the 11 Texas legislators prepared to wreak havoc on the nation, its people and its lawyers.

The history of lawyers and juries should give us hope. In the 1960s, lawyers went to the south at some risk to register black citizens. Until the early 1980s there were almost no spousal abuse cases or child abuse cases brought or prosecuted; when women in numbers came into the legal profession suddenly many such cases were filed. When northern juries heard people assisting escaped slaves they refused to convict. We may expect jury nullification in some cases which seek to enforce harsh Texas laws.

Last thoughts

1. Law only works when supported by the consent of the governed.

2. Why did the Supreme Court not use its principle of originalism to see what American founders thought about abortion? There were no abortion statutes at the time our constitution was enacted.

3. Is it the mark of a good judge to anticipate the effects of a decision on all those affected by it?

4. Did the justices foresee the pain that is now flowing from their decision? Did they not believe that a family makes a deeply personal decision when they decide how many children to have?

5. There is a national fight brewing and trial lawyers in Texas and the nation love a good fight.

6. A few years before the drafting of the American Constitution, Mary Wollstonecraft (1759-1797) said "I do not wish them (women) to have power over men, but over themselves."

7. The question for all of us is what we must do to support the reestablishment of the principles set out in Roe.