3 lawyers readying arguments in high court abortion case

Nov 29, 2021, 11:55 PM | Updated: Dec 1, 2021, 3:31 am
Barriers to separate activists are set up outside of the Supreme Court in Washington, Tuesday, Nov....

Barriers to separate activists are set up outside of the Supreme Court in Washington, Tuesday, Nov. 30, 2021, ahead of arguments on abortion at the court in Washington.(AP Photo/Andrew Harnik)

(AP Photo/Andrew Harnik)

WASHINGTON (AP) — Leading up to Wednesday’s major abortion case at the Supreme Court, the justices have heard from thousands of people and organizations urging the court to either save or scrap two historic abortion decisions.

But on Wednesday they’ll hear from just three lawyers: one representing the state of Mississippi, another representing Mississippi’s only abortion clinic and the last representing the Biden administration. For each, it’s a chance to be part of what is likely to be a historic case.

The three are scheduled to appear before the justices for just over an hour’s worth of arguments in Dobbs v. Jackson Women’s Health Organization, though the arguments will likely go longer. Mississippi is asking the justices to overturn two seminal decisions, Roe v. Wade and Planned Parenthood v. Casey, decisions that say women have a constitutional right to abortion before a fetus is viable.

Lawyers who argued those historic cases became famous in their own ways. Sarah Weddington was just 26 when in 1971 she argued Roe v. Wade on behalf of Norma Jean McCorvey, who was known by the pseudonym Jane Roe. Weddington went on to a career in government and academia.

Opposing her was Texas attorney Jay Floyd, who became infamous for opening his argument with a failed attempt at humor. “It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word,” he said. When the high court ordered the case re-argued, Floyd was replaced.

Two decades later, when the court heard arguments in the Casey case, Pennsylvania Attorney General Ernest D. Preate Jr. argued in support of his state’s abortion law. He later spent time in prison for secretly taking campaign contributions from the operators of illegal gambling machines. The lawyer arguing on behalf of President George H.W. Bush’s administration and in support of Pennsylvania, meanwhile, was Ken Starr. It was two years before he was tapped to lead the investigation that led to President Bill Clinton’s impeachment. The third attorney who argued in the case, Kathryn Kolbert, co-founded the Center for Reproductive Rights, which is involved in Wednesday’s case.

Here are some things to know about the advocates arguing this week:


Scott G. Stewart will defend a Mississippi law that would ban abortions after 15 weeks. Lower courts declared the law unconstitutional.

Though the case marks the first Supreme Court appearance for Stewart, 39, he will be familiar to some of the justices. A graduate of Princeton and Stanford’s law school, he was a law clerk to Justice Clarence Thomas in 2016 when the court dealt abortion opponents a loss, striking down Texas’ widely replicated rules that required doctors who perform abortions to have admitting privileges at nearby hospitals and forced clinics to meet hospital-like standards for outpatient surgery.

Thomas dissented from that decision, and Stewart’s argument that the justices should overturn Roe and Casey is a position that Thomas himself has taken.

Before becoming Mississippi’s solicitor general, Stewart worked for the Department of Justice during the Trump administration. In that role, he defended administration policies including making asylum-seekers wait in Mexico for hearings in U.S. immigration court and preventing a pregnant teen who entered the country illegally from obtaining an abortion while in federal custody.


Arguing against the state of Mississippi is Julie Rikelman of the Center for Reproductive Rights who represents the Jackson Women’s Health Organization, Mississippi’s lone abortion clinic. The clinic sued after the state passed its ban on abortions after 15 weeks.

Because of other restrictions the state has put on abortions, the clinic only performs abortions up to 16 weeks. It says about 100 of the abortions it performs every year occur after 15 weeks.

Rikelman, 49, will be arguing before the court for the second time. Last year, before the death of liberal Justice Ruth Bader Ginsburg and her replacement by conservative Justice Amy Coney Barrett, the Harvard law graduate argued and won another abortion case. In that case, the center represented a clinic and doctors asking the court to strike down a Louisiana law regulating abortion clinics. Rikelman has said she made the argument on very little sleep, not because she was nervous but because her hotel’s fire alarm was blaring much of the night.

Rikelman immigrated to the United States when she was six. Her family is Jewish and fled Ukraine and to escape discrimination. Rikelman says her background made her “more aware of issues of fairness and discrimination” and helped spark an interest in reproductive rights.


The Biden administration’s top Supreme Court lawyer, Elizabeth Prelogar, will argue for the federal government. The administration’s position is that Roe and Casey were correctly decided and that overturning them would cause “grave harm.”

Prelogar, 41, will be making her eleventh argument before the court. Just weeks ago she argued a different Supreme Court case involving abortion. That case was about a restrictive Texas abortion law that prohibits abortion after cardiac activity is detected in a fetus. That’s usually around six weeks and before some women know they are pregnant. Prelogar was arguing that the federal government can mount a federal court challenge to the law. The justices have not yet announced their decision in that case.

Before being confirmed to her current position, Prelogar served on special counsel Robert Mueller’s investigation of Russian meddling in the 2016 election. She speaks Russian and lived there as a Fulbright scholar. A graduate of Emory and Harvard law school, she has the rare distinction of having been a law clerk for two Supreme Court justices, Ruth Bader Ginsburg and Elena Kagan. She is also a former Miss Idaho.

Prelogar is only the second woman to lead the solicitor general’s office on a permanent basis. Kagan led the office during President Barack Obama’s administration before becoming a justice.


Associated Press researcher Jennifer Farrar contributed to this report.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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3 lawyers readying arguments in high court abortion case