CIVIL RIGHTS & SOCIAL IMPACT

Challenging Unconstitutional Law Limiting Right to Abortion Services

Working in partnership with abortion care providers and civil liberties groups, a Jenner & Block team filed a lawsuit in Florida state court on June 1, 2022, bringing a state constitutional challenge to Florida House Bill 5, a new state law that bans abortion after 15 weeks of pregnancy and threatens to put doctors in jail for providing essential care beyond that point.

In 1980, Florida voters amended their state’s constitution to provide broad protections for individual privacy rights, a provision that has been repeatedly construed to include a right to abortion care. And in 2012, Florida voters overwhelmingly rejected a constitutional amendment that would have narrowed Florida’s abortion protections to be coextensive with federal law. In the lawsuit, the plaintiffs argued that House Bill 5 is blatantly unconstitutional under Florida law.

In a press release published the day the lawsuit was filed, Partner April Otterberg said, “HB5 unconstitutionally limits an individual’s right to access abortion services, a right that is protected by the Florida Constitution. This lawsuit seeks to block the implementation of this law and asks the court system to uphold and protect the rights enshrined in the state constitution.”

The firm’s team, with their co-counsel at American Civil Liberties Union, ACLU of Florida, Center for Reproductive Rights, and Planned Parenthood Federation of America, took the case from filing to expert discovery and then a full-blown evidentiary hearing in less than a month. Shortly after that hearing, the trial court issued an order blocking the 15-week abortion ban, ruling that it likely violates Florida’s state constitution, and its implementation would cause irreparable harm to Floridians. The state appealed the ruling within hours, triggering an automatic stay of the injunction under Florida law. House Bill 5 took effect on July 1 and has remained in effect since then. The counsel team has filed a series of motions and briefs, first in the trial court, then in the appellate court, and finally in the Florida Supreme Court, seeking to reinstate the injunction and to be permitted to continue the litigation to seek a permanent block against House Bill 5.

In a press release published the day the notice of appeal was filed with Florida’s Supreme Court, Partner Shoba Pillay said, “Despite the court’s continued refusal to block House Bill 5, we plan to take this case to the Florida Supreme Court to keep fighting for the constitutional rights of all Floridians. We will do everything we can to ensure the voices of Floridians are represented and their power is not taken away.”

On January 23, 2023, the Florida Supreme Court accepted a request by abortion providers to hear arguments in their case against House Bill 5. The team is now briefing the appeal and waiting for oral arguments to be scheduled. The ban remains in place for now.

The firm’s team dedicated an enormous amount of late-night and weekend hours to the case, which included intensive prep sessions while gearing up for the evidentiary hearing. The team was led by Partners April Otterberg and Shoba Pillay, and former Partner Tassity Johnson. Associates Reanne Zheng, Sara Crook, Meg Hlousek, Annie Schoenfeldt, Emily Merrifield, Savannah Berger, and Miriam Wayne, and Paralegal Fallon McDowell provided the team with essential support. Associates Sara Stappert, Casey Carlson, and Karolina Bartosik provided additional valuable assistance.

“Being part of this team has been empowering. With the prospect of Roe v. Wade falling, and then the Supreme Court’s decision to overturn Roe, I was motivated to take action, and since then, I have used my professional skills to try to effectuate change and impact the lives of real women. It has been inspiring and energizing to do this important work with a team of strong, diverse women lawyers who care about these issues just as much as I do,” said April Otterberg.

The litigation in the Florida case unfolded as abortion laws changed at a hectic pace across the nation after the June 24, 2022, US Supreme Court decision in Dobbs v. Jackson Women's Health Organization overturned a near half-century of established law that had guaranteed the federal constitutional right to abortion. In response, the firm launched the Post-Dobbs Task Force to help clients, organizations, and individuals navigate this new and changing legal landscape. The firm’s continued pro bono efforts, in Florida and elsewhere, are just one component of our task force’s work in this area.

Research Project Shines a Light on Hurdles that Indian Migrants Face

The rights of Indian workers migrating to Jordan, Qatar, and the United Arab Emirates were the focus of an extensive research project conducted by lawyers in our London office along with Lawyers Without Borders, an organization that advances the rule of law and supports justice systems around the world.

The team investigated labor laws, issues in the countries receiving migrant workers, and the hurdles that migrant workers face when their rights are violated. The project was particularly timely in view of the international focus on working conditions in Qatar, where the 2022 FIFA World Cup was held. The team also analyzed how the COVID-19 pandemic affected migrant workers.

With the aim of raising awareness about migrant workers’ rights, the team used the research to produce presentations for the eLearning platform of Lawyers Without Borders. The organization uses the presentations in a multi-stakeholder strategy aimed at strengthening the capacity and coordination of civil society initiatives in both sending and receiving countries by informing them about the laws and rights applicable to migrant workers. Lawyers Without Borders will also use the information that underpins the presentations to make reference cards to be provided to migrant workers prior to travelling to or while working in host countries.

The hope is that by distributing easy-to-use reference cards translated into the workers’ relevant languages, the research will help migrant workers more fully access their rights in the host countries and seek appropriate redress when those rights have been breached. By doing so, our work will help Lawyers Without Borders meet their other strategy objectives of awareness-raising among migrant communities and help enhance and facilitate their access to safe migration information and guidance.

Partners Christine Braamskamp, Robert Dalling, and Paul Feldberg, Special Counsel Lucy Blake and Michaela Croft, Associates Sol Gelsomino and Karam Jardaneh, and Paralegals Thomas Mason and Neha Patel worked on the project.

In addition to Lawyers Without Borders, the team partnered with Verité and Free the Slaves on this effort.

London Office Supports Clients Appealing a Reduction or Removal of Benefits

Appealing a government decision to deny or remove disability benefits often requires a lawyer’s assistance, and our lawyers from the London office have helped many individuals do exactly that in 2022. The large majority of the appeals were successful.

In these cases, our clients want to challenge a government decision rejecting their application for financial benefits on account of their disability. The UK disability benefits regime operates a points-based system which awards points depending on how difficult the applicant finds everyday activities, such as getting dressed and feeding or bathing themself, and mobility tasks such as leaving the house. For each component there is a lower and higher weekly rate of financial support, with the higher rate reserved for those who are most impacted by their disability. This financial support is often crucial for clients to ensure they can pay for the extra costs arising from having care or mobility needs resulting from a long-term illness or disability.

In one case, our London office assisted a client who was originally refused a disability living allowance following a short government telephone assessment, despite suffering from a neurological condition which renders her unable to undertake everyday activities such as making her own food and showering. By conducting a thorough client interview, our lawyers unearthed material aspects of the client’s case that had not come to light in the government’s assessment. This, coupled with presenting the client’s case persuasively through written and oral submission, resulted in a successful appeal. The client was awarded the financial support she so desperately needed. Partner Jason Yardley and Associate Yahia Boussabaine worked on this case.

Joining forces with the University House Legal Advice Centre, we are proud to help our pro bono clients navigate the benefits appeals process by working through case histories, preparing appeal submissions, and advocating for them at tribunal hearings. Others who have also supported these cases include Partner Lizzie Shimmin and Special Counsel Ronan O’Reilly and Michaela Croft.

Fight Against “Damaging” Theory that Would Imperil Fair Election Maps Goes Before US Supreme Court

Jenner & Block represents the North Carolina League of Conservation Voters and 15 North Carolina citizens in what a former federal circuit judge warned is “the most important case for American democracy in the almost two and a half centuries since America’s founding.” The case, Moore v. Harper, was argued before the US Supreme Court on December 7, 2022.

Moore v. Harper is an amalgam of three cases arising from North Carolina’s redistricting process. In one of the cases, former Partner Zach Schauf successfully argued in 2022 that the state legislature’s gerrymandered maps were unconstitutional. As a result of this victory before the North Carolina Supreme Court, North Carolina’s congressional elections proceeded last November under a fair map secured by the Jenner & Block team’s efforts. Ultimately, North Carolina voters elected seven Republicans and seven Democrats to the current Congress.

North Carolina legislative leaders appealed to the US Supreme Court, arguing that they are not bound by their state constitution when making the rules for congressional elections. In a Supreme Court brief filed jointly with co-respondents Common Cause and Rebecca Harper, Partners Jessica Ring Amunson and Sam Hirsch argued:

“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy.”

The team awaits the Supreme Court’s decision.

Jessie and Sam were assisted in the US Supreme Court case by Partner David Bradford and Associates Karthik Reddy, Leonard Powell, Illyana Green, Carter Smith, Sophia Cai, and Benjamin Hand and former Associate Urja Mittal.

Those who helped litigate the case in the North Carolina courts included Partners Kali Bracey, Benjamin Bradford, Alex Trepp, and David Greenwald and Associate Mary Marshall. Senior Paralegal Cheryl Olson and Paralegals Thomas Scholtus and Adam Weidman also assisted. Others in the firm provided important assistance, including Partners Robert Stauffer, David Jimenez-Ekman, and David Sanders; Associates Brandon Polcik, Huiyi Chen, and Allison Tjemsland; Department Counsel Adam Caldwell; Senior Paralegals Daniel Garcia and Theresa Busch; and Paralegals Grace Liberman, Sam Rosen, and Kendall Allen.

Oberlin College Case Spurs Jenner & Block to Fight for First Amendment Protections

When a college in Ohio made national news after it was sued for supporting student protestors, Jenner & Block supported the college with an amicus brief that warned against upending First Amendment protections.

In 2016, students from Oberlin College protested Gibson’s Bakery after a 2016 altercation between three Black Oberlin students and an employee of the bakery, which involved the arrest of the three students. The protestors organized a boycott to protest, among other things, accounts of discrimination by the bakery and the use of force against a Black student during the incident. Protestors distributed fliers describing the police response as an “assault” on the students and said the incident was the latest in a pattern of “racial profiling” at Gibson’s.

In response, Gibson’s sued Oberlin College on the grounds that the institution and its staff enabled the distribution of defamatory statements during these protests. While the trial court found that the students’ chants were protected under the First Amendment, Oberlin could still be found liable for supporting the distribution of the allegedly defamatory statements in the fliers.

In 2022, the Ninth Ohio District Court of Appeals dismissed Oberlin College's appeal, and the college then sought review by the Ohio Supreme Court. On behalf of the NAACP and its Ohio chapter, Jenner & Block’s brief urged the Ohio Supreme Court to hear Oberlin's appeal “to restore the important First Amendment protections that are threatened by this decision.”

The brief outlined the historical development of First Amendment principles protecting free speech and political expression. The brief explained the role that boycotts and protests played during the civil rights movement, the importance of student organizing to oppose discriminatory practices by private businesses, and how civil tort liability has been used as a weapon by those who oppose of civil rights.

While the court decided in August 2022 not to hear the appeal, the firm’s amicus brief put one of our core values in writing: protecting our First Amendment rights.

The team included Partners Jessica Ring Amunson and Ishan Bhabha and Associate Deanna Krokos, as well as Senior Paralegal Cheryl Olson, and Manager of Docketing Services Tyler Edwards.

Amicus Briefs and Name Change Petitions Demonstrate Jenner & Block’s Support of LGBTQ+ Rights

Advocating for transgender rights took many forms in 2022. Following Texas Governor Greg Abbott’s directive to investigate gender-affirming care for transgender minors as “child abuse,” Jenner & Block filed an amicus brief in Travis County, Texas, in Doe v. Abbott on behalf of Professor Ron Beal, a Texas administrative law expert. Our brief supported the plaintiffs’ application for a temporary injunction to Abbott’s directive. Partner Benjamin Halbig and Associate Reanne Zheng took the lead in authoring the brief, supervised by Partner Clifford Berlow.

In a North Carolina case, we represented the American Medical Association and seven health care organizations as amici who argued that the state’s health plan for state workers must cover medically necessary treatments for gender dysphoria. A federal judge in the Middle District of North Carolina agreed. We also filed the brief when the case went on appeal to the Fourth District, where it is pending. The team included Partners Howard Suskin, Matt Cipolla, and Jessie Ring Amunson; Special Counsel Matt Feldhaus; Associates Illyana Green, Lawrence McMahon, Christina Isnardi and Paralegal Mary Frances Patston.

In New York, our amicus brief supported the Yeshiva University (YU) Pride Alliance and students in their successful appeal in a case seeking to have Yeshiva University recognize LGBTQ affinity groups and treat them similarly to other such student groups and clubs. The brief highlighted psychologists’ research showing the importance of LGBTQ student affinity groups to LGBTQ students’ mental health and well-being in providing a healthy outlet for social support for such students. The team was led by Partners Michelle Kallen, Jeremy Creelan, and Rémi Jaffré and Associate Owen Keiter.

Throughout 2022, Jenner & Block continued our collaboration with the Transgender Legal Defense & Education Fund (TLDEF) to operate a Name Change Project. Low-income transgender, gender non-confirming, and non-binary people are provided legal name change services through this effort. Last year, we partnered with counsel from corporate clients Abbott Laboratories, JPMorgan Chase & Co., and Conagra. In one example, Partners Laurie Edelstein and Joe Torres and Associate Alexis Bates joined counsel from Abbott Laboratories to secure a name change petition for their client. To date, name changes have been granted to 19 individuals.

Disabled Clients Find Support and Advocacy from Jenner & Block

From riders of a New York transit system to parents of disabled students, clients seeking access and fairness have found support from Jenner & Block.

In New York, a team filed a class action lawsuit on behalf of five individuals with disabilities who use the city’s paratransit services and are excluded from using transit fare discounts.

The Metropolitan Transportation Authority and the New York City Transit Authority (together, the MTA) offer substantial fare discounts, including half fares for people with disabilities and seniors, as well as 30-day and seven-day unlimited fares for bus and subway riders - but not for users of the Access-A-Ride (AAR) paratransit system, whose disabilities prevent them from riding buses and subways. In seeking to end discrimination, the lawsuit argues that the MTA should be required to offer Access-A-Ride users the same discounts available to subway and bus riders. It also asks the MTA to reimburse AAR riders for the financial harm they have suffered. The lawsuit was filed in the New York Supreme Court in February 2022 and the case remains ongoing.

Partner Marc Hankin, Associates Corey Schoellkopf and Matthew Phillips, Special Counsel Carl Wedoff, and Staff Attorney Ehsan Khah represent the plaintiffs along with New York Lawyers for the Public Interest and Mobilization for Justice.

The firm is also working with Equip for Equality, an organization dedicated to advancing the human and civil rights of people with disabilities in Illinois. Partners Lindsay Harrison and Precious Jacobs-Perry, Pro Bono Counsel Nura Maznavi, and Pro Bono Partnership Lawyer Angelina Smith helped pilot the Special Education Clinic’s Parent Helpline in partnership with TransUnion. The Special Education Clinic advocates for children with disabilities to have the right to a free and suitable education, and the helpline aims to answer parents’ questions about their children’s education, provide support, and help them learn about their legal rights. The helpline’s call volume almost doubled this past year, allowing the organization to support more than 2,000 families.

“Thanks to the legal services provided by our pro bono volunteers, including lawyers at Jenner & Block and TransUnion, we have made a real difference in the lives of children with disabilities,” said Olga Pribyl, vice president of Special Education Clinic and Equip for Equality.

Partners Madeleine Findley, Gabriel Gillett, Lindsay Harrison, Precious Jacobs-Perry, Camillie Landrón, Elin Park, Pete Rosenbaum, Dawn Smalls, Miwa Shoda, Kate Spelman, Department Counsel Betsy Olson, and Associate Tim Yuhasz, along with lawyers from TransUnion, volunteered to staff the helpline. This partnership remains ongoing.

Parents who are advocating for the appropriate public education of their children with disabilities are also separately represented by Jenner & Block teams. Partner Landon Raiford and Associate Annie Schoenfeldt represented the parent of a 10-year-old student in Chicago who opposed the child being removed from his general education setting and into a segregated placement. They were ultimately able to get the student placed back in general education full-time. They also advocated for the student to receive appropriate behavioral support such as social work and a certified behavior therapist.

In another case, Landon joined Associates Karolina Bartosik and Tyler Westrich in representing the parents of a fourth-grade student in Chicago who has high functioning autism and a learning disability in reading. The student’s school district is refusing to provide the student with the instruction and services necessary to help her improve her reading skills, despite her lack of substantial progress in years. The team is hard at work developing the case.

US Supreme Court Keeps Definition of “Indian” Intact

In a victory for Native Americans, the US Supreme Court refused to hear Oklahoma’s petition to drastically narrow who qualifies as an “Indian” under federal law.

In Oklahoma v. Wadkins, Jenner & Block represented Robert Wadkins, who had been charged by Oklahoma for alleged offenses committed within the boundaries of the Choctaw Reservation. Following the Court’s 2020 decision in McGirt v. Oklahoma, successfully argued by Jenner & Block, Robert’s case was remanded to the state trial court to determine his Indian status. Although the trial court determined he was not an “Indian,” the Oklahoma Court of Criminal Appeals unanimously reversed that decision based on Robert’s post-offense enrollment in the Choctaw Nation, the Certificate of Degree of Indian Blood card that was issued to him when he was an infant, and his receipt of health services reserved only for Indians.

When the Court denied certiorari on October 11, 2022, it left in place the Oklahoma appellate court’s decision holding that Robert is an Indian. Associate Lenny Powell who led the team with support from former Partner Zach Schauf, explained the impact: “A decision to grant certiorari in this matter could have had severe consequences, including depriving non-enrolled Indians of federally funded healthcare.”

Amicus Brief: Let Protestors Seek Remedies against Federal Officials Who Crack Down on Peaceful Demonstrations

Following the murders of George Floyd and Breonna Taylor at the hands of police, protests spread across the globe. On June 1, 2020, protestors peacefully gathered in Lafayette Square, a park across from the White House in Washington, DC. Then-President Donald Trump ordered law enforcement to use tear gas, rubber bullets, clubs, and shields to remove the peaceful protestors. Moments later, he crossed the square for a photo-op in front of St. John’s Church. The New York Times called the series of events “one of the defining moments of the Trump presidency.”

Black Lives Matter DC and others filed a lawsuit against Trump, former Attorney General William Barr, and several other government officials for their actions. They argued that the officials violated the protestors’ First, Fourth, and Fifth Amendment rights, and sought damages for those violations under the Supreme Court precedent Bivens v. Six Unknown Named Agents. In 2021, the district court dismissed the claims and held that, under Bivens, federal officials cannot be sued for damages for violently attacking peaceful protesters in a public forum. In its ruling, the court said that Congress had not authorized such a remedy.

When the protestors appealed to the DC Circuit, Jenner & Block quickly lent its support by writing an amicus brief on behalf of a bipartisan group of 33 former members of Congress. The brief argues that contrary to the district court’s opinion, when Congress passed the Westfall Act in 1988, it forged a bipartisan compromise that specifically preserved the right of those injured by federal officials to seek redress under the Constitution. The brief also draws vivid parallels between the violent response to the Lafayette Square protest and protests in the Capitol experienced by those Members of Congress in the 1970s, highlighting how Congress had those protests—and the Bivens remedy that was afforded to those protestors—in mind when it passed the Westfall Act.

“Amici are concerned that the district court’s decision would undermine the legislative scheme Congress has crafted to protect individuals from unlawful conduct by federal officials—and in particular, violent crackdowns on peaceful protesters exercising their First Amendment rights in an iconic public forum,” the brief says. The brief urges the DC Circuit to reverse the district court decision.

Partner Gabriel Gillett led the team with assistance from Partners Jacob Alderdice, Ishan Bhabha, and Lauren Hartz and Associates Alex Langlinais and Christina Lopez.