Corporate law firms should not ignore nor routinely dismiss threats made last week by Texas Republican legislators that they will punish law partners who fund travel for Texas employees who go to other states to have abortions.
Two leading academic experts, SMU Dedman School of Law Professor Joanna L. Grossman and South Texas College of Law Houston Professor Josh Blackman, say members of the Texas Freedom Caucus should be taken seriously when they issue threats of criminal and civil penalties and possible disbarment against law firm leaders for paying the travel expenses of Texas staff to travel for reproductive healthcare services forbidden in the state.
Last week, the 11-member Texas Freedom Caucus sent the global law firm Sidley Austin, which has offices in Dallas and Houston, a letter accusing the firm of being “complicit in illegal abortions” and giving notice of the “consequences that you and your colleagues will face for these actions.”
”As absurd as the letter is, I think Sidley has no choice but to take it seriously,” Professor Grossman, who serves as the Ellen K. Solender Endowed Chair in Women and the Law at SMU Dedman. “This is not because the Freedom Caucus is making good points. However, the antiabortion legislators and executive branch officials in Texas have made clear that they intend to take extreme positions, whether supported by the law or not, and intend to target people to use as examples.”
“The law firm should treat this like any other legal challenge,” Prof. Grossman said. “They should throw all the resources and knowledge they have at the issue. The lawyers at Sidley are much more qualified to analyze any potential legal risk than a collection of legislators who don’t seem to understand what the law is or how the law works.”
Professor Blackman, who has a significant following among conservative constitutional legal observers and is an adjunt scholar at the libertarian Cato Institute, said law firm leaders should proceed with caution.
”I think law firms need to be careful with regard to Texas’ existing laws and laws that may be passed in the future,” professor Blackman told The Texas Lawbook. “It may be possible to structure the insurance policies such that the funding does not come from a Texas entity, but I suspect the state can craft laws to close those loopholes.”
The Texas Freedom Caucus posted an open copy of the letter to Sidley on its website last Thursday, but observers agree that the letter was intended as a threat to all law firms operating in Texas and even Texas companies.
Dozens of corporate law firms and even several large companies operating in Texas have publicly stated that they would provide financial and other assistance to employees who seek to travel to obtain any healthcare-related reproductive services if those services are no longer allowed in the states where they work.
Several states, including Texas, had legal provisions in place that outlawed abortion if the U.S. Supreme Court ever reversed Roe v. Wade, which it did last month in Dobbs v. Jackson Women’s Health Organization.
The Texas Freedom Caucus cites Texas Civil Statutes 4512.1, which was passed in 1974 and “imposes felony criminal liability on any person who furnishes the means for procuring an abortion knowing the purpose intended.”
“To the extent that Sidley is facilitating abortions performed in violation of article 4512.1, it is exposing itself and each of its partners to felony criminal prosecution and disbarment,” caucus chair and state Rep. Mayes Middleton wrote.
The legislators also threatened to introduce new bills next year that would “prohibit any employer in Texas from paying for elective abortions or reimbursing abortion-related expenses – regardless of where the abortion occurs and regardless of the law in the jurisdiction where the abortion occurs.”
In addition, Middleton said the legislation would “require the State Bar of Texas to disbar any lawyer who has violated article 4212.2 by furnishing the means for procuring an abortion knowing the purpose intended.”
The Texas Lawbook identified more than 20 corporate national law firms operating in Texas – including Sidley, Kirkland & Ellis, Gibson Dunn, Latham & Watkins, Simpson Thacher, White & Case, Alston & Bird, Orrick, Wilson Sonsini, Hogan Lovells – that have stated publicly or in memos to their employees that the firms will provide financial assistance to those who wish to seek reproductive healthcare in other states.
Only three Texas-based law firms – Akin Gump, Susman Godfrey and Vinson & Elkins – have publicly made such a commitment.
A spokesperson for Houston-based V&E, which is the largest law firm in Texas by lawyer headcount and second in revenues, told The Texas Lawbook the law firm “will, as part of its health plan, provide a travel benefit for covered health care services that are unavailable locally.” V&E was the first Texas law firm 25 years ago to offer same-sex benefits to its lawyers and staff.
Several large Texas-headquartered corporate firms – Baker Botts, Bracewell, Haynes and Boone, Jackson Walker, Locke Lord and Winstead – have not made public their position on the issue.
A handful of law firm leaders said they found it interesting – or unfortunate – that the Texas Freedom Caucus chose Sidley and its new firm leader, Yvette Ostolaza, as the posterchild target for their campaign.
A firm with 2,000 lawyers worldwide, Sidley has nearly 200 attorneys in Texas and generated revenues of $250 million in its Texas offices in 2021, according to The Texas Lawbook 50.
“As a piece of legal analysis, the letter is ridiculous,” Professor Grossman said. “It threatens criminal enforcement – but is sent by members of the legislative branch of government, which writes laws but does not enforce them. It also suggests that laws that haven’t been passed yet must somehow be complied with – also a ridiculous suggestion.”
Professor Grossman said the Texas Freedom Caucus letter “randomly cites language and concepts from different laws to give a misleading impression about Sidley’s potential liability.”
“The letter fits with the GOP anti-abortion approach, which is to create such fear of civil liability and criminal consequences that no rational individual or organization would dare get involved in providing abortion care or helping patients who need it,” she said.
Multiple law firm leaders, in interviews with The Texas Lawbook, said they are exploring potential legal defenses that include First and Fourteenth Amendment arguments.
They also point to possible litigation under the federal commerce clause, which has been used in some cases to invalidate laws that excessively burden interstate commerce.
Prof. Blackman said he doesn’t “think the commerce clause makes much of a difference.”
“Firms that do business in Texas could be subject to Texas laws,” he said.
Professor Grossman said the issue is much more complicated.
“The issue of whether Texas can restrict individuals or entities from helping people access legal abortions in other states is going to be litigated in the near future,” she said. “If a court were to apply the usual principles and precedents, we would expect the court to strike down any law that purported to restrict an individual’s right to travel as well as any law that punished people who assisted in that travel.”
Professor Grossman pointed out that the commerce clause has been used “mostly to challenge laws that privilege a state’s residents over residents of other states – here we have the opposite.”
“We would also expect a court to strike down any law – or prosecution – that purported to give Texas the right to impose its rules on other states or conduct that takes place in other states,” she said. “But it’s impossible to predict whether some of the current judges who might hear these cases will stick to precedents or will, as the Supreme Court itself has done, just ignore them because ‘abortion is different.’”