ONE DAY BEFORE her Supreme Court debut as the next solicitor general of the United States, Elizabeth Prelogar was walking around her Capitol Hill neighborhood with a doctor and a Rubik’s Cube. She went trick-or-treating with her two young sons, as one does when Halloween is a big deal in the family. The Senate had just confirmed her on October 28, 2021, and Attorney General Merrick Garland swore her in the next day, with her boys and husband by her side, as the Justice Department’s fourth-highest-ranking official. “It was a command performance that Mom had to be there,” she once recalled.
Yet on her mind that day as she was going door-to-door was the fate of abortion rights in Texas, which the state had all but nullified with a new law, SB 8, allowing private parties to sue neighbors, doctors, or anyone else they suspected of performing or assisting a person in obtaining an abortion—at the time still a fundamentally protected right under the Constitution. “SB 8 is a brazen attack on the coordinate branches of the federal government,” she argued on November 1. “It’s an attack on the authority of this court to say what the law is and to have that judgment respected across the 50 states.”
As much as she tried, General Prelogar, as the justices addressed her that morning, couldn’t convince a majority to let the US government intervene in court to protect Texans from a law “that clearly violates this court’s precedents.” It was her first exposure during the Biden years, as solicitor general, to what has been a coordinated, long-inthe-making assault on abortion rights at the federal level. The same five conservative justices who, in a parallel case, more or less allowed the biggest state in the South to ignore Roe v. Wade went all the way less than a year later in overruling it for the entire nation with Dobbs. There, too, Prelogar lost.
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