Solicitor General Elizabeth Prelogar back in the spotlight in her fight against the conservative Supreme Court on abortion


For the fourth time since becoming the federal government’s top lawyer on the Supreme Court, Solicitor General Elizabeth Prelogar is defending an abortion-related case.

The dispute before the high court Wednesday, over whether federal mandates for hospitals override strict state bans on abortion in medical emergencies, shows how legal fights over the right to abortion did not stop when the conservative majority ended a constitutional right to abortion in 2022.

In the first two abortion-related cases, Prelogar argued as the fourth Justice Department official, both heard during the Supreme Court’s 2021 term, that the conservative majority rejected his calls for protection of the right to abortion. But Prelogar has scored victories on other issues where the Biden administration was seemingly at odds with the Court’s conservative leanings, including in fights over immigration policy and voting rights.

Government supporters hope that in the two abortion cases before the Supreme Court this year, Prelogar can bring at least some conservative justices to the side of the federal government.

Lawyers with experience arguing before the High Court cite Prelogar’s oral argument skills as a problem, as well as his strategy of making legal points that will attract support from judges who are otherwise hostile to abortion – and this without undermining the broader arguments. in favor of access to abortion.

“She understands well why access to abortion here is important, both practically and constitutionally,” said Stephanie Toti, a reproductive rights attorney at The Lawyering Project, who argued and won a major case relating to for the right to abortion before the Supreme Court. Court in 2016. “But at the same time, she has focused on the places where she is likely to have the most influence with the judges.”

From competitions to petitions before the highest court in the land

Prelogar, born in 1980, is herself a former Supreme Court clerk, having worked for the late Justice Ruth Bader Ginsburg and Justice Elena Kagan. The Senate’s 53-36 vote confirming her as solicitor general made her the second woman to hold the position, with Prelogar following in the footsteps of Kagan, solicitor general during the Obama administration.

When Prelogar argues before the Supreme Court, she argues before several alumni of the U.S. Office of the Solicitor General. Chief Justice John Roberts was the principal deputy solicitor general during the administration of George HW Bush, while Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh also served in that position. the office of the solicitor general.

The first case Prelogar defended after his Senate confirmation was an unsuccessful Biden administration lawsuit challenging a six-week abortion ban in Texas, which the conservative majority allowed to go into effect even though it conflicted with Roe precedent, still in effect at the time of confirmation. at the time, which protected the right to abortion nationwide.

Court observers after the proceedings noted how often the court’s male judges interrupted Prelogar’s responses to their questions. Her ability to remain unfazed in the face of tough questions from judges might come from her time as a young woman competing in pageants, winning Miss Idaho in 2004..

“If you want to look at a throughline here, I like to get in front of judges,” Prelogar joked during an October 2023 appearance on the NPR game show “Wait, Wait… Don’t Tell Me.”

Originally from Idaho, Prelogar attended Emory University and then Harvard Law School. She also worked for her current boss, Attorney General Merrick Garland, when he was a Washington Circuit judge, before her clerkships at the Supreme Court. She later argued cases before the Supreme Court on behalf of private companies and worked on special counsel Robert Mueller’s investigation.

Prelogar declined to comment for this story.

The case Prelogar is arguing Wednesday pits the federal government against its home state.

The Biden administration alleges that Idaho’s strict abortion ban conflicts with a U.S. law requiring federally funded hospitals to provide “stabilizing” care to emergency room patients. The nation’s abortion law allows abortion when a woman’s life is in danger, but not when a woman’s pregnancy risks serious harm to her health, which is not yet life-threatening.

The Justice Department filed a lawsuit against Idaho, claiming that the federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA), overrides the abortion ban in these latter situations. Idaho contends the lawsuit is an attempt by Biden to modernize the Reagan-era law to attack a state’s power to regulate abortion.

Beyond the abortion issue, the case asks the court to address an important question of federal preemption over state laws, according to Beth Brinkmann, senior litigation director at the Center for Reproductive Rights who has worked in the office of Solicitor General during the Clinton administration.

Likewise, the abortion affair, according to Prelogar last month, could have significant consequences for federal power. In this case, anti-abortion doctors are seeking to reverse regulatory actions taken by the Food and Drug Administration that made it easier to obtain the abortion drug mifepristone. The administration and its supporters have argued that a ruling in favor of mifepristone’s challengers would undermine the FDA’s regulatory authority and open the door to a slew of lawsuits against any of the FDA-regulated drugs.

“Not only are these very important questions regarding abortion, but they are both very important questions of federal law for the solicitor general, as an advocate for the federal government,” said Brinkmann, who was co-counsel of Prelogar, representing power companies aligned with the Justice Department in a major environmental law case that the administration lost in 2022.

Prelogar is praised for being extremely well prepared for oral arguments and for her ability to focus the court on arguments that might appeal to Republican-appointed judges who are otherwise skeptical of abortion rights.

Yet she was unsuccessful in the Texas abortion case, where the Supreme Court threw out the Justice Department’s lawsuit challenging the six-week ban in an unsigned order that had attracted only ‘a single public dissent. Prelogar also could not convince a fifth justice to uphold the Supreme Court’s decision. Roe v. Wade precedent, in the second abortion case, she argued as solicitor general, supporting a lawsuit brought by abortion clinics challenging Mississippi’s 15-week abortion ban.

In this case, she emphasized the legal doctrine known as stare decisis, which sets a high bar for the Court’s previous precedents to be overturned.

The abortion pill case, Prelogar reported last month, contained promising signals from the judges for the federal government. She and her co-counsel — a lawyer representing a mifepristone manufacturer who intervened in the case — highlighted claims that anti-abortion doctors lacked so-called standing to sue , arguing that regulations on the drug did not cause problems for doctors. types of harm that would justify judicial intervention.

Justices Roberts, Gorsuch and Amy Coney Barrett weighed in on the issue, asking pointed questions about what doctors were saying about how they were being harmed by the drug’s regulation.

During oral arguments on the abortion pill, the justices also indicated they were already thinking about the case they are now hearing Wednesday, with questions focused on whether individual doctors with moral objections to abortion could be forced to perform this procedure. Prelogar noted that there is a federal law that protects individual doctors in these situations.

“There are distinct, independent, and conscientious protections in federal law that would govern these matters, regardless of EMTALA’s preemption of state law,” Toti said. “This is going to be a key argument in the next case.”

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