‘Striking'Disparity in Sexes in Abortion Case Representation

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By Melissa Heelan Stanzione

June 29 — Women attorneys representing the abortion provider that challenged Texas abortion regulations at the Supreme Court—and won—vastly outnumbered female attorneys representing the other side, a tally done by Bloomberg BNA shows.

The disparity may reflect women's prevailing attitudes on the abortion issue or large law firms' attempts to promote a certain image, some court observers told Bloomberg BNA.

But others said many women are not pro-abortion and are concerned about the lack of regulation of the abortion industry.

The U.S. Supreme Court struck down a Texas law that regulated abortions because it held the law unduly burdens a woman's constitutional right to abortion in Whole Woman's Health v. Hellerstedt, 2016 BL 205262 (U.S. June 27, 2016) ( see related story ).

More than 300 attorneys were involved in the case, representing the parties and the amici curiae supporting their positions.

An analysis of the more than 80 briefs—including amicus briefs—filed by both sides reveals a disparity in representation by women attorneys between the two sides, Bloomberg BNA research shows.

There are significantly more women attorneys representing the petitioners challenging the Texas law and their amici than the opposing side and its amici, according to the research.

Of the 200 attorneys representing the petitioners, Whole Woman's Health, and their amici, 109—or 54.5 percent—were women.

Of the 113 attorneys representing the respondents and their amici, 20—or 17.7 percent—were women.

Gender Imbalance

“The gender imbalance is striking,” Suzanne B. Goldberg, a professor at Columbia Law School, New York, told Bloomberg BNA June 24.

Goldberg specializes in equality theory and sexuality and gender law.

“I'm not terribly surprised” by the difference in representation between the sides, Elizabeth B. Wydra, president of the Constitutional Accountability Center in Washington, told Bloomberg BNA June 28.

Wydra, along with David H. Gans and Brianne J. Gorod, also of the Constitutional Accountability Center, filed an amicus brief in support of petitioners.

“Women don't have to think in lockstep simply because they're all female, but given that most women value their right to choose—whether they have an abortion or not—most women recognize that they want to retain that authority,” Wydra said.

But Kerri Kupec, an attorney and legal communications director with Alliance Defending Freedom, Washington, said that the views of many women were represented in the amicus briefs supporting the law in Whole Woman's Health.

“In one amicus brief alone, over three thousand women who were injured by abortion—either psychologically or physically—asked the Court to consider the perspective of women who have actually been victims of the sub-standard practices of the abortion industry,” Kupec told Bloomberg BNA in a June 29 e-mail.

“As both an attorney and woman myself, I am surprised that any woman would fight a law that’s designed to protect them,” Kupec said.

Big Law Representation

Further Bloomberg BNA research reveals that 24 large law firms participated in the case.

These are firms that have appeared on Above the Law's 2016 or 2015 Power 100 Law Firm Rankings.

All the firms—including 82 attorneys—represented the law's challengers or amici supporting the challengers. Of these attorneys, 45, or 54.9 percent, were women.

No large law firm represented Texas or amici supporting Texas.

Big Law's representation of the clinics might be a reflection “of the general support you see among people in the country, the majority of which support abortion rights,” Wydra said.

In a recent poll conducted by the National Institute for Reproductive Health, two-thirds of voters don't want the U.S. Supreme Court to overturn its decision affirming a woman's 14th Amendment right to have an abortion in Roe v. Wade, 410 U.S. 113 (1973).

But Kupec pointed to another measure to gauge the public sentiment about abortion.

“Americans care more than ever about the lives of the unborn,” Kupec said.

“An example of this is that in over a third of the states, laws have been enacted that protect babies in the womb from being aborted at the five month mark,” she said.

Other Influences

What else might explain the disparity between the sides in the case?

Diversity is a hot issue at law firms and there is pressure at firms to increase the number of women and minority employees (84 U.S.L.W. 1772, 6/2/16).

According to one study, only 18 percent of equity partners at law firms are women, even though women make up 44 percent of associates.

This pressure comes from within and outside the firms.

When deciding on pro bono work, law firms think a lot about how their choices of cases will affect their reputation in the hiring marketplace as well as with their clients, Goldberg said.

“I think clients, hiring concerns and a push from lawyers within firms are all driving increased efforts toward meaningful diversity and inclusion,” in the legal field, she said.

The pressure on firms to promote diversity may also influence its choice of clients in cases involving controversial issues.

We are seeing this here and we saw it in the same-sex marriage cases, Wydra said.

The Supreme Court held in 2013 that restricting the interpretation of “marriage” and “spouse” under the Defense of Marriage Act to apply only to heterosexual unions is unconstitutional in United States v. Windsor, 81 U.S.L.W. 4633, 2013 BL 169620 (U.S. 2013)(82 U.S.L.W. 38, 7/2/13).

Two years later, the high court held that the right to marry is a fundamental right that can't be denied to same-sex couples in Obergefell v. Hodges, 83 U.S.L.W. 4592, 2015 BL 204916 (U.S. 2015)(83 U.S.L.W. 1989, 6/30/15).

In those cases, “you saw most of the big law firms filing on the side of marriage equality,” Wydra said.

Big Law Firm That Dropped ‘Unpopular' Client

  • King & Spalding represented respondent Bipartisan Legal Advisory Group, which opposed same-sex marriage in United States v. Windsor.
  •  In 2011, it dropped BLAG as client.
  •  Attorney and former Solicitor General Paul D. Clement, who represented BLAG, resigned from the firm after this.
  • Resignation letter stated he did so “out of a firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters.”

Wydra said this “was a reflection of both popular support for the position but also [firms] thinking how they wanted to be viewed by their clients and employees when it comes to these important questions,” she said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text of Whole Woman's Health opinion at http://src.bna.com/gkz.

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