WASHINGTON (LifeSiteNews) — Conservative Supreme Court Justice Samuel Alito challenged an attorney for the Biden administration to explain the difference between racist Plessy v. Ferguson and pro-abortion Roe v. Wade during a December 1 hearing on a Mississippi abortion case.
Plessy is the 1896 Supreme Court case, reversed in 1954 by Brown v. Board of Education, that said racial segregation in public accommodations can remain legal if it is “separate but equal.” It paved the way for legal defenses of Jim Crow segregation laws.
“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Alito, seen as a likely vote to reverse Roe, asked Solicitor General Elizabeth Prelogar during the hearing last week. The Solicitor General represents the Biden administration in front of the Supreme Court.
Prelogar said the Court could only reverse a long-standing precedent if a state “[came] forward with some kind of materially changed circumstance or some kind of materially new argument.”
“Really? So, suppose Plessy v. Ferguson was re-argued in 1897, so nothing had changed,” Alito said. “Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”
Prelogar said the decision was “egregiously wrong” and should have been “overruled” as soon as possible.
Alito then pressed Prelogar on why other wrongly decided cases could not be reversed immediately.
“So, there are,” Alito said before being briefly interrupted, “circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided?”
He drew a parallel between the “reliance” that the South had on Plessy to the arguments used for abortion today.
“The South built up a whole society based on the idea of white supremacy,” Alito said. “So, there was a lot of reliance. It was rely — it was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.”
He asked Prelogar to explain what she meant by reliance. The abortion lobby argues that women need abortion to succeed.
“[Pro-abortion Supreme Court ruling] Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child,” the Biden administration counsel argued. “And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers.”
“And so, I think, on a very individual level, there has been profound reliance,” Prelogar said. “And it’s certainly the case that not every woman in America has needed to exercise this right or has wanted to, but one in four American women have had an abortion, and for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives.”
She concluded her exchange with Alito by arguing that while “not everyone agrees with Roe v. Wade … just about every person in America knows what this Court held, they know how the Court has defined this concept of liberty for women and what control they will have in the situation of an unplanned pregnancy.”
Read LifeSite’s coverage of Dobbs v. Jackson here.