Solicitor General Elizabeth Prelogar again in the spotlight fighting the conservative Supreme Court on abortion

By Tierney Sneed, CNN

(CNN) — For the fourth time since she became the federal government’s top Supreme Court advocate, Solicitor General Elizabeth Prelogar is arguing an abortion-related case.

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

In the first two abortion-related cases Prelogar argued as the Justice Department’s fourth-ranking official, both heard during the Supreme Court’s 2021 term, the conservative majority rejected her calls that abortion rights be protected. But Prelogar has eked out wins on other issues where the Biden administration was seemingly at odds with the court’s conservative proclivities, including in tussles over immigration policy and voting rights.

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

Lawyers with experience arguing before the high court cite Prelogar’s skills in oral arguments, as well as her strategy of putting forward legal points that will attract the support of justices who are otherwise hostile to abortion as an issue – and doing so without undermining the larger arguments in favor of access to abortion.

“She has a good understanding of why access to abortion here is important, as both a practical matter and the constitutional matter,” said Stephanie Toti, a reproductive rights attorney at The Lawyering Project who argued and won a significant abortion rights case at the Supreme Court in 2016. “But at the same time, she’s put her focus on the places where she’s likely to have the most leverage with the justices.”

From pageants to petitioning the highest court in the land

Prelogar, born in 1980, is a former Supreme Court clerk herself, having worked for both 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 women ever to serve in the role, with Prelogar following in the footsteps of Kagan, the solicitor general during the Obama administration.

When Prelogar argues before the Supreme Court, she is arguing in front of several alumni of the US Office of the Solicitor General. Chief Justice John Roberts was the principal deputy solicitor general during the George H.W. Bush administration, while Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh also did stints at the solicitor general’s office.

The first case Prelogar argued after her 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 was odds with the Roe precedent, still on the books at the time, that protected abortion rights nationwide.

Court observers after the arguments noted how frequently the court’s male justices interrupted Prelogar’s responses to their questions. Her ability to remain unflappable in the face of justices’ tough questioning may stem to her time as a young woman competing in pageants, winning Miss Idaho in 2004.

“If you want to look at a through-line here, I like to go in front of judges,” Prelogar quipped during an October 2023 appearance on the NPR gameshow “Wait, Wait … Don’t Tell Me.”

An Idaho native, Prelogar attended Emory University and then Harvard Law School.  She also clerked for her current boss, Attorney General Merrick Garland, when he was a DC Circuit judge, before her Supreme Court clerkships. She went on to litigate Supreme Court cases for private firms and worked on special counsel Robert Mueller’s investigation.

Prelogar declined to comment for this story.

Idaho v. US

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

The Biden administration is alleging that Idaho’s strict abortion ban conflicts with a US law requiring that federally funded hospitals provide “stabilizing” care to emergency room patients. The state abortion law allows for abortion when a woman’s life is in danger, but not when a woman’s pregnancy is risking serious harms to her health that are not yet life threatening.

The Justice Department brought a lawsuit against Idaho claiming the federal law, known as the Emergency Medical Treatment and Labor Act or EMTALA, overrides the abortion ban in those latter situations. Idaho argues the lawsuit is an attempt by Biden to retrofit the Reagan-era law to attack a state’s power to regulate abortion.

Beyond the issue of abortion, the case is asking the court to answer an important question of federal preemption of state laws, according to Beth Brinkmann, the senior litigation director at Center for Reproductive Rights who served in the solicitor general’s office during the Clinton administration.

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

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

Arguments aimed at winning over conservatives

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

Yet she fell short in the Texas abortion case, where the Supreme Court dismissed the Justice Department lawsuit challenging the six-week ban in an unsigned order that had only one public dissent. Nor could Prelogar convince a fifth justice to uphold the Supreme Court’s Roe v. Wade precedent, in the second abortion case she argued as solicitor general, supporting a lawsuit by abortion clinics challenging Mississippi’s 15-week abortion ban.

In that 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 argued last month included some promising signals for the federal government from the justices. She and her co-counsel – a lawyer representing a mifepristone manufacturer that intervened in the case – stressed claims that the anti-abortion doctors did not have what’s known as standing to bring the lawsuit, arguing that the drug’s regulations were not causing the doctors the types of harm that would warrant a judicial intervention.

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

During abortion pill oral arguments, the justices also signaled they were already thinking about the case they are now hearing Wednesday, with lines of questioning focused on whether individual doctors with moral objections to abortion can be forced to perform the procedure. Prelogar noted that there is a federal statute that protects individual doctors in those situations.

“There are separate and independent, conscientious protections in federal law that would govern those issues, regardless of EMTALA pre-empting state law,” Toti said. “That’s going to be a key line of argument in in the upcoming case.”

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