All three advocates arguing one of the term’s most closely watched cases over the availability of the abortion drug mifepristone are women, a rare occurrence at the US Supreme Court where male attorneys vastly outnumber their female counterparts.
US Solicitor General Elizabeth Prelogar will defend the Food and Drug Administration’s lifting of certain safety measures for administering the drug. Representing drug maker Danco Laboratories is Hogan Lovells partner Jessica Ellsworth.
On the other side is Alliance Defending Freedom’s Erin Hawley, wife of Sen. Josh Hawley (R-Mo.), who will argue on behalf of a group of anti-abortion doctors challenging agency action in FDA v. Alliance for Hippocratic Medicine.
Female lawyers have made unusually frequent appearances at the Supreme Court lectern this term. While the number of women advocates in recent terms has fluctuated between 12% and 24%, women have made 44 of the 130 arguments so far this term. That’s approximately a third.
But advocates say it’s too early to celebrate.
While it’s important to “celebrate short-term gains in diversity at the lectern, I look much more for sustained trends before I feel like we’re actually making progress,” said Goodwin partner Jaime Santos. She argued an immigration case Nov. 28 and won a 6-3 ruling.
More Women
Prelogar is the second woman to hold the DOJ’s No. 4 post, after her former boss, Justice Elena Kagan. Prelogar also clerked for Justice Ruth Bader Ginsburg.
Following her clerkships, Prelogar joined Hogan Lovells, where Ellsworth is now a partner. Ellsworth is making her second argument after her high court debut in an arbitration case less than a month earlier, in Coinbase, Inc. v. Suski.
And while Hawley is making her Supreme Court debut in the mifepristone case, she’s no stranger to the high court. She clerked for Chief Justice John Roberts and was part of the ADF team helping Mississippi in its successful bid to overturn the constitutional right to abortion, in Dobbs v. Jackson Women’s Health Organization.
“I actually have noticed seeing way more women which is wonderful,” said Lisa Blatt, the chair of Williams & Connolly’s Supreme Court and Appellate practice. Blatt has argued more cases than any women in Supreme Court history.
Earlier in the March sitting, Blatt was part of a trio of all-female lawyers arguing the First Amendment case Gonzalez v. Trevino. And twice this term, both lawyers arguing the case have been women. That happened in the immigration case, Wilkinson v. Garland and in Bissonnette v. LePage Bakeries Park St., LLC, a case about arbitration.
Male-only lineups, though, have occurred this term nearly four times more often than all-female ones.
Sustained Change
But Santos noted that a big portion of the female appearances have been done by repeat players—something she calls the Blatt/Prelogar effect. Those two advocates typically argue numerous cases each term, and so the numbers “don’t really reflect a change in practice for the Supreme Court Bar as a whole.”
The mifepristone case will be Prelogar’s eighth argument of the term, accounting for nearly 20% of appearances by women. And while Blatt has only argued at the high court once this term, she had four appearances last term.
Like in recent terms, the gender diversity was driven largely by federal and state governments, as well as public interest groups. Those groups have sent women to the lectern 32 times, compared with firms at 12. During that period, 45 male attorneys have appeared on behalf of firms.
Hogan Lovells’ Cate Stetson, who made her third argument this term, said it’s hard to know why the gender gap among Big Law appellate lawyers persists.
“We’ve done our very best to fight that,” she said, noting that a majority of Hogan’s appellate partners are female.
In order to fully address the gap, “we’d need to see sustained change, particularly at the level of first-time advocates,” Santos said.
Blatt noted that several female firm attorneys made their Supreme Court debut this term. Those included both Ellsworth and Santos. Akin Gump’s Aileen McGrath and Winston & Strawn’s Linda Coberly also made their first appearances earlier this year.
Theane Evangelis of Gibson Dunn will do the same during the court’s last sitting in April in a case about local efforts to tackle homelessness, in City of Grants Pass, Oregon v. Johnson.
“It’s critically important to have a diverse group of advocates argue before the Court,” Evangelis said in an email, because the justices “benefit from hearing a variety of voices and perspectives.”
Dangerous Consequences
While Hawley said it’s important for young lawyers to see women arguing before the court, that’s so “particularly on this issue.”
The justices will consider actions the FDA took in 2016 and 2021 to extend the approved use of mifepristone from seven weeks to 10, eliminate the requirement to dispense the drug in-person, and allow nonphysician health-care providers like nurse practitioners to prescribe it.
Doctors challenging those actions say the FDA failed to consider relevant material, putting patients in danger. While the government and drug maker say the changes were based on extensive experience and studies showing mifepristone is among the safest drugs available.
But Stetson warned against thinking of this only as an abortion case.
There are significant questions about the doctors authority, or standing, to even challenge the FDA actions, she said. And the case is one of many this term asking whether and to what extent judges should second-guess the actions of expert agencies.
“This really shouldn’t be thought of as just an abortion case,” Stetson said. The fundamental doctrines of standing and administrative law are “implicated here, and if they get bent to fit the subject matter there’s going to be a dangerous consequence.”
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