Former DOJ attorney under Trump will argue Mississippi’s case to Supreme Court to reverse Roe v. Wade

by Bobby Harrison, Mississippi Today
November 29, 2021

When the case that seeks to overturn Roe v. Wade and give states the option to ban abortion is argued before the U.S. Supreme Court on Wednesday, Mississippi Attorney General Lynn Fitch will be at the counsel’s table.

But it will be Fitch’s appointed solicitor general, Scott Stewart, arguing the case.

Stewart, a California native, served in the U.S. Department of Justice defending many of then-President Donald Trump’s most controversial immigration policies. After Trump left office, Fitch named Stewart solicitor general of Mississippi in March 2021.

Michelle Williams, Fitch’s chief of staff, confirmed on Monday that Scott will argue the case, and Fitch “will be at the counsel’s table with him.”

The case began as a challenge to Mississippi’s 2018 law that bans abortions after 15 weeks. Early on, Fitch’s office filed documents with the Supreme Court saying Mississippi’s law could be upheld without completely overturning Roe v. Wade, the 1973 ruling that established a woman’s right to an abortion.

But sometime after Stewart came onboard at the Attorney General’s Office, Fitch’s argument was re-crafted to claim Roe v. Wade was wrongly decided and should be reversed by the nation’s high court.

Many prognosticators believe that the current makeup of the U.S. Supreme Court makes the Mississippi case the most serious challenge to Roe v. Wade since the early 1980s — making the state of Mississippi, its attorney general and solicitor general the focus of national attention this week.

READ MORE: U.S. Supreme Court schedules oral arguments for Mississippi abortion ban

Prior to Fitch winning the vacant attorney general’s office in 2019, Mississippi has not had the position of solicitor general. In a press release, Fitch said that 39 states, according to the National Association of Attorneys General, had the post of solicitor general to serve as “the lead advocate for appellate litigation.”

In 2020, soon after being sworn in, Fitch announced Kristi Haskins Johnson of Brandon — a former assistant U.S. attorney — as the solicitor general. But in March 2021, after Trump left office resulting in Stewart’s departure from the Justice Department, Fitch announced Stewart would assume the role as solicitor general.

State law does not address the issue of solicitor general, but Williams said Fitch has the option to create the post.

“I would note that there is nothing in statute providing specifically for employment of a chief of staff, but that is my title,” Williams said earlier this year.

Stewart was involved in the 2016 Trump presidential campaign, according to the Washington Post, and assumed a deputy attorney general post for the office of immigration litigation after Trump’s victory.

While working for Trump, who has advocated for the reversal of Roe v. Wade, Stewart has not previously been known as active in the anti-abortion movement, according to the Washington Post article. While at Princeton University, Stewart wrote about dialing down the rhetoric surrounding the controversial issue of abortion — “a calming of the waters on abortion,” the Post article revealed.

In 2017, according to various media reports, Stewart did argue one abortion case at DOJ. Stewart, defending a policy of the Trump administration, argued that a 17-year-old teenager who discovered she was pregnant while being held at a Texas facility as an unaccompanied minor immigrant could not receive the abortion she sought, even though she had received permission from the courts to obtain it.

The Trump administration would not allow her to leave the holding facility to obtain the abortion. Stewart argued the girl would have to return to her native land to receive the abortion.

U.S. District Judge Tanya Chutkan told Stewart, “I am astounded by that position,” and ordered that the girl be allowed to have the abortion in the United States. After that court ruling, the Trump administration later changed its stance on denying abortions for unaccompanied minor immigrants who had gone through the legal process to be approved for an abortion.

READ MORE: Gov. Reeves says individual choice for vaccines OK, but not for abortion

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.