The End of Roe and the Relationship Between Nonprofits and the Law

A draft opinion was leaked yesterday that was somehow both shocking and unsurprising.   A fifty-year war on the reproductive rights and bodily autonomy of people – in the name of theocracy, patriarchy, or the ingrained antipathy that drives our country in its current direction – approaching a monumental and devastating victory.

There are better places to read about how this happened, what we can do to mitigate the crushing harm this will have on birthing people, and what we need to do to ensure this victory of theirs is a fleeting one.  And, on an individual level, I cannot claim to be able to fully grasp the personal impact of a decision like this, being told that the legal precedents and traditions that secure your rights are somehow more disposable than those of everyone else.  We may post or link to further reflections on these more essential topics by more capable people.

I would like to at least briefly reflect, however, on something I vaguely understand:  the relationship between nonprofits and the law.

As lawyers, it is very easy for us to fall into the trap of believing that the world revolves around compliance.  That being a good organization begins with whether you followed the rules, and only then do you unlock the potential to make an impact.  When those rules are about making sure charities spend their money properly, do not enrich their insiders, and remain accountable to the public – fine, I’m with you:  compliance is important and organizations that embrace compliance are more effective.

But the law is not always on the side of justice.  In many cases, the law IS the injustice.  And we must avoid our tendency as lawyers to valorize compliance.  Instead, we must embrace our imperative as human beings to resist oppression and undermine the laws behind it.

As lawyers, we must tell you that charities put their exemption at risk when they engage in illegal activities, and advise on the consequences of breaking the rules, even when those rules are on the side of inhumanity.  But as people, we all know what needs to happen now: everyone, in every state, needs to be given access to safe abortion.

Many thousands of lives depend on it, as does our purported status as a modern country.  Whatever needs to be done to achieve that result, it is incumbent on nonprofits, particularly those bestowed with millions of dollars and enormous political power, to see that it happens.  There is a time and place for lawyers in that process, but understanding that the law is secondary to what is right.

I have expressed similar sentiments in the context of reproductive rights before but let us not overlook the panoply of laws, new and old, that call upon nonprofits to position themselves against the law.  The true history of our nation needs to be taught in schools.   Trans children and adults need to be protected from a movement that wants to extinguish their very existence.  The system of mass incarceration and racist police brutality that carries slavery’s torch onward into our troubled future needs to be dismantled.

Accomplishing all that will require nonprofits that are well-organized and have a thoughtful approach to governance and compliance, it’s true.  It will also require nonprofits, their supporters, their funders, and all of us who are horrified to be willing to throw their bodies “upon the gears and upon the wheel, upon the levers, upon all the apparatus.”  We all have to make it stop.