Litigate and Innovate in Abortion Law: That’s Stephanie Toti’s Mission.

She argued one of recent history's most important abortion cases. And now, with her Lawyering Project team, she's pushing beyond the tried-and-true legal playbook.

[PHOTO: A dark haired woman with dark eyeglasses speaks in front of a bouquet of microphones.]
Stephanie Toti, former senior counsel at the Center for Reproductive Rights, speaks a day before her oral arguments in the 2016 landmark abortion case Whole Woman's Health v. Hellerstedt. With that victory under her belt, she's pushing to find new ways to think about abortion law. Drew Angerer/Getty Images

The night before the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, Stephanie Toti spent hours baking—pound cake, banana bread, cookies—to calm her nerves.

Toti, then 37 years old, was a lawyer at the Center for Reproductive Rights (CRR), and this landmark abortion rights case was her first appearance before the nation’s highest court. When the court ruled 5-3 in favor of the clinics on June 27, 2016, it marked the culmination of years of work and a new beginning.

In September 2017, Toti started her own nonprofit, the Lawyering Project, which builds off the Whole Woman’s Health precedent to strengthen protections for reproductive rights. Toti had never thought about starting her own law practice before, but the Supreme Court’s decision, along with the election of Donald Trump four months later, felt like a watershed moment.

“I thought there was an opportunity, and maybe a need, for some innovation and some experimentation. And I was in a position to do that,” Toti said in a phone interview with Rewire.News. “The best way to do that would be at a small organization that had more freedom to take risks and experiment with new strategies.”

Before the Whole Woman’s Health decision, Toti said the reproductive rights movement had been somewhat risk-averse in terms of legal strategy. Cases tended to be reactive, focused on blocking new anti-choice laws as they popped up, rather than proactive. There was also reluctance to bring cases that didn’t seem like clear wins, which meant many harmful laws went unchallenged. Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, said she took flak for bringing Whole Woman’s Health v. Hellerstedt due to concerns it would lose and set precedent that could potentially even further restrict reproductive rights in the United States.

“People were nervous about us bringing this case because it could set a standard that was harmful,” Hagstrom Miller said. “That was one of the reasons the repro movement had not brought a case [to the U.S. Supreme Court] in ten to 15 years: People were afraid it could get worse.”

When the Supreme Court ruled in favor of Whole Woman’s Health, the decision galvanized the reproductive rights movement and demonstrated that taking legal risks could pay off. Toti wanted to build on that momentum with new kinds of lawsuits, representing new kinds of plaintiffs, that aimed to have a larger impact. With its staff of eight—six lawyers and two program managers, spread out across the country—the Lawyering Project is using the precedent to pioneer a legal strategy that is bold, fresh, and intersectional. It’s a small organization, but it’s taking big swings.

In June, the Lawyering Project filed two “comprehensive repeal” lawsuits in Texas and Indiana that challenge five categories of abortion restrictions, encompassing dozens of laws, in one fell swoop, including: targeted regulation of abortion provider (TRAP) laws; restrictions on medication abortion and telemedicine abortion; mandatory counseling requirements; parental consent laws for minors; and those that criminalize abortion providers. Some of these laws have been on the books for decades.

“Rather than focusing on a single law that is restricting access, we look at the whole landscape of laws to highlight the ways they work together to impose obstacles on people seeking care,” said Toti. “It’s not just the ban on telemedicine or the mandatory delays or the forced ultrasound or the inaccurate medical disclosures. It’s all of those things working together.”

Another part of the Lawyering Project’s legal strategy is to include a greater diversity of plaintiffs in the litigation process. Abortion providers have traditionally served as plaintiffs in abortion litigation, while smaller, grassroots organizations, like abortion funds, were not involved, even though the cases affected the people they served. In the Whole Woman’s Health decision, the Supreme Court recognized that just because abortion is accessible to some doesn’t mean it’s accessible to all. Many women do not have access to the money, transportation, child care, or flexible working hours that enable them to drive long distances or make multiple trips to a clinic, and that represents an undue burden.

To illuminate these disparities, Toti and her team are partnering with abortion funds and reproductive justice organizations, many which have never participated in this type of litigation before. The goal is to represent a broader array of voices and perspectives in court.

“We are demonstrating how these laws not only interfere with abortion care, but also how they have a disproportionate impact on disadvantaged communities and those battling other forms of oppression, like racism and poverty,” Toti said.

In Indiana, the Lawyering Project is representing Whole Woman’s Health Alliance (the nonprofit arm of Whole Woman’s Health) and All-Options Pregnancy Resource Center in a comprehensive repeal suit. Located in Bloomington, All-Options helps people navigate decision-making around pregnancy, parenting, abortion, and adoption and connects them to resources, whether it’s abortion funding or free diapers.

Executive Director Parker Dockray said this full-spectrum approach gives the organization a unique perspective on how abortion restrictions fit into the larger framework of reproductive justice. When the Lawyering Project asked if All-Options would be interested in serving as a plaintiff, the team eagerly said yes.

“It’s exciting for us to bring the voices of people who may never become patients at an abortion clinic because they can’t actually get to the abortion,” Dockray said. “For people who are denied abortion care or do not have the resources, we see their struggle from their beginning. That’s a powerful perspective, and I think it makes us a great plaintiff.”

In the Texas case, plaintiffs include Whole Woman’s Health Alliance; the Afiya Center, a Dallas-based reproductive justice organization; abortion funds Fund Texas Choice, North Texas Equal Access Fund, West Fund, and Lilith Fund; and physician Bhavik Kumar.

Lilith Fund provides direct financial assistance to people seeking to end unwanted pregnancies and provided $298,817 in support to 1,475 people in 2017. Executive Director Amanda Williams said participating in litigation fits into Lilith Fund’s overarching mission.

“While abortion funding is and has always been central to our mission, we know that if we don’t work to fight back against attacks in systemic ways, things will never change,” Williams said in an email to Rewire.News. “What we accomplish with the lawsuit will lay important groundwork for influencing policy at local, state, and federal levels going forward. We should take any and every opportunity to expose the web of unnecessary restrictions the Texas legislature puts in the way of its people.”

To Pepis Rodriguez, who joined the Lawyering Project as a litigation counsel in March 2018, the organization’s commitment to partnering with grassroots plaintiffs was a big draw. Rodriguez graduated from Georgetown Law School in 2015 and spent two and a half years as a staff attorney at the Center for HIV Law and Policy. The Lawyering Project’s innovative, intersectional approach to reproductive rights litigation appealed to him as a new attorney.

“It strikes me as courageous lawyering,” he said. “We’re trying new things and telling new stories. Being able to bring in more voices and expand the kinds of evidence in the record that carry weight, that’s very important and exciting. In my view, that’s the way the work should be done.”

The Lawyering Project is a new addition to the constellation of organizations that are using the Whole Woman’s Health decision to protect and advance reproductive rights in the Trump era. Over the past two years, the American Civil Liberties Union, the CRR, and Planned Parenthood have filed dozens of lawsuits across the country that build off the precedent. Because these larger institutions are so active about blocking new abortion restrictions as they pop up, Rodriguez said this creates space for the Lawyering Project to pursue more unconventional strategies, push boundaries, and take risks that could have a seismic impact if successful.

“Those organizations are like this doorstop that keeps new restrictions from piling up,” he said. “Great, y’all are handling that. Meanwhile, we are going to try to dismantle the entire scheme and bring the whole thing down.”