Neither he nor those who cite his legal commentary on the abortion-pill case feel the need to disclose this rather important fact.
The abortion-pill case winding through the Northern District of Texas and the Fifth Circuit on its way, most likely, to the Supreme Court has generated a lot of legal commentary. Quite a few commentators have cited Substack posts by Adam Unikowsky, who has uniformly sided with the defenders of the pill. While most commentators on abortion cases tend to wear their pro- or anti-abortion commitments on their sleeves, Unikowsky’s credibility has been bolstered by his former clerkship for Justice Antonin Scalia. Danco Laboratories even twice cited his Substack posts in its emergency brief to the Supreme Court.
But those citing his work almost never seem to mention a rather important fact, which so far as I can tell is nowhere disclosed in his Substack posts: Jenner & Block, the big law firm at which Unikowsky is a partner in the appellate-practice group, represents Planned Parenthood, including in this very case. In the Fifth Circuit, Jenner filed an amicus brief on behalf of “over 100 reproductive health, rights, and justice organizations” including Planned Parenthood, NARAL Pro-Choice America, the National Abortion Federation, the Center for Reproductive Rights, the Guttmacher Institute, and any number of abortion clinics and state-level pro-abortion groups.
I don’t know if Unikowsky has ever worked on these matters himself. But representing Planned Parenthood and other pro-abortion groups in litigation over abortion is a major, recurring business commitment for Jenner, which the firm proudly publicizes. In February 2023, for example, Jenner filed an amicus brief in a case attacking the Texas abortion law. The lead lawyer is the managing partner of Jenner’s D.C. office, at which Unikowsky works. In June 2022, Jenner, “working in partnership with abortion service providers and civil liberties groups,” filed suit against Florida’s abortion law. One of those groups was Planned Parenthood. In Dobbs itself, Jenner filed, pro bono, an amicus brief representing 15 “Organizations Dedicated to the Fight for Reproductive Justice.”
Gavin Newsom’s former chief of staff, Ann O’Leary, co-leads the firm’s “Post-Dobbs Task Force” and currently represents Walgreens as the drugstore chain tries to offer the abortion pill without running afoul of state law:
The firm describes her as involved in sensitive investigations, government controversies and public policy litigation. She also is listed as a co-chair for Jenner & Block’s “Post-Dobbs Task Force,” a group that stood up to help the firm guide clients through complex issues around law and policy after the Supreme Court overturned the constitutional right to abortion last year. In that capacity, she has co-written articles about the legal landscape surrounding medicated abortion. Jenner has represented Walgreens in court.
That task force — which includes the D.C.-based chairman of Jenner & Block and two of the four co-chairmen of its appellate-practice group — describes having:
- Advised companies in a variety of industries regarding their commitments to provide a travel benefit for their employees to travel to states that provide legal abortion care.
- Advised companies that may have consumers who are using their services as they travel to seek or obtain safe and legal access to abortion.
- Advised healthcare providers trying to understand whether providing abortion care or medical consultations, including information about abortion care, would lead to criminal or civil liability in the states they serve.
- Advised technology companies seeking to protect consumer data from use in abortion related prosecutions or to assess whether services that provide greater access to care could be alleged to be “aiding and abetting” an abortion.
- Advised companies that have consumer data that could be used in abortion related prosecutions to assess risks and develop response plans.
The firm’s institutional pro-abortion stance is also backed by its donations. The National Abortion Federation touts Jenner’s matching gifts when you give them money to “Support Abortion Providers.” O’Leary told the American Lawyer last year that “none of us are hiding from who we are, which is a group of lawyers deeply committed to equality in this country, and have been on the front lines of this fight. So it’s important to recognize that.”
Legal arguments are, in the end, right or wrong regardless of who advances them. But in writing about those arguments, it is essential to properly identify people who have an ideological affiliation, and it is even more essential to properly identify people who have a dog in the fight in particular cases. (We disclosed, in the National Review editorial on the pill case, that Ed Whelan has filed an amicus brief in the case, and Ed has blogged about that brief, which grew out of his writing at NRO.)
Until the very end of my many years at a big law firm, I was very rarely told what I couldn’t write about — so long as I didn’t comment directly on one of our cases — but it was always understood, especially as my writing became more prominent, that I couldn’t publish something that would cross a big client. Your firm’s being in the middle of a major legal battle constrains what you can say. But when you’re aggressively, publicly arguing the case of one of your clients, you can afford to expend time and effort and maybe even draw on your firm’s resources to produce commentary. I have no idea if Unikowsky is billing the time he puts in his relevant Substack posts, or if he’s getting internal research assistance for them, but isn’t that the point of disclosure? Shouldn’t those who cite his work mention his law firm’s deep involvement in one side of the abortion debate and in this very case of abortion-pill litigation?