Morrison Foerster has long championed the advancement of women. The U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization struck down 50 years of precedent that MoFo lawyers, on behalf of our clients, had fought to defend in nearly 20 cases since 1989, including Whole Woman’s Health v. Hellerstedt, a U.S. Supreme Court decision in 2016 that reaffirmed a woman’s constitutional right to abortion.
While the Dobbs decision unleashed chaos in the legal status of abortion, it has not dampened the commitment of many MoFo lawyers to preserving women’s access to reproductive health care through legal support inside and outside the courtroom.
In the immediate aftermath of the Dobbs decision, Litigation partner Jamie Levitt was one of the first to endorse a call to action published in The American Lawyer, which was later signed by more than 2,650 women partners from 190 law firms and outlined a personal commitment to continue “offering pro bono legal services to organizations that defend and support women’s rights to autonomy, equality and safe access to reproductive care, including abortion.” MoFo’s Privacy team, led by New York Privacy + Data Security partner Miriam Wugmeister, quickly developed and issued MoFo Privacy Tips for Protecting Reproductive Rights to offer guidance to the public on how to safeguard their personal health information.
On another front, Jamie Levitt and senior pro bono counsel Jennifer Brown spent months working closely with several public interest organizations to develop the Abortion Defense Network (ADN), bringing together lawyers from top law firms and reproductive rights organizations to offer a nationwide resource for abortion-related confidential legal advice. Dozens of lawyers have attended trainings offered by ADN and, since its inception one year ago, MoFo lawyers have advised more than 25 abortion providers and support organizations who were referred by ADN or similar regional networks, helping these clients untangle the web of contradictory state laws that now govern this field of medicine.
MoFo lawyers, led by New York Litigation partners Jamie Levitt and J. Alexander Lawrence, are continuing to work with the Center for Reproductive Rights on critical litigation as well.
Since March 2023, MoFo lawyers and the Center have been fighting in several cases to establish that medical emergency exceptions to state abortion prohibitions must be interpreted so that women’s lives are not jeopardized when they face severe and dangerous complications during pregnancy. In a Texas case, MoFo litigators are representing lead plaintiff Amanda Zurawski and other women who were denied urgently needed abortions as their health deteriorated drastically because doctors could not risk criminal punishments of up to 99 years in prison and $100,000 in fines if a prosecutor disagreed with the doctor’s determination that a medical emergency justified an abortion.
As Jamie Levitt explains, “We are representing women who have all faced serious pregnancy complications, and the issue with the current law is the statutes have standards that are very unclear, so our lawsuit is seeking clarity.” After two days of riveting testimony, the Texas trial court hearing the case issued an order in August 2023 clarifying that “emergent medical conditions” – meaning conditions that, without an abortion, threaten the pregnant woman’s life or health – come within the medical emergency exception to the Texas abortion bans, and there is no need to wait for a patient to be in crisis before offering treatment. The court’s ruling, however, was immediately stayed when the state appealed the case to the Texas Supreme Court. That court heard argument in November 2023 and has not yet issued its decision.
Meanwhile, when a Texan named Kate Cox, whose pregnancy with a non-viable fetus threatened her health and her future fertility, heard about the Zurawski case, she bravely came forward to ask for legal help to end her pregnancy. She, her husband, and her OB-GYN became plaintiffs in a case that was urgently litigated by MoFo lawyers and the Center for Reproductive Rights. Women and men across the country followed the case closely as the trial court held that an abortion was permitted under the Texas medical emergency exception. Before Cox could get treatment, however, the Texas Supreme Court issued a stay of the trial court’s order and within the week, it ruled against her, her husband, and her doctor. (Cox left the state to obtain an abortion.)
MoFo lawyers are also partnering with the Center for Reproductive Rights in the case Blackmon v. Tennessee, being heard in Tennessee state court. As in the Texas litigation, the goal of this case is clarification from the court that the medical condition exception to Tennessee’s abortion ban allows a doctor to provide abortion care when a pregnant woman has a physical emergent medical condition that poses a risk of death or a risk to the woman’s health, including her future fertility. The state’s motion to dismiss that case is scheduled for argument in early April 2024.
MoFo lawyers remain undaunted. “As long as women’s reproductive rights are threatened, our pro bono team remains on the front lines and will continue to marshal the time, talent, and resources needed to zealously advocate for our clients in Texas and beyond,” said Jamie Levitt. The dozens of MoFo lawyers who have collectively contributed more than 3,000 hours to these efforts since the Dobbs decision surely agree.