Justice Samuel Alito Appears Ready to Overturn Roe: Okay to Overturn Cases That are “Egregiously Wrong”

National   |   Micaiah Bilger   |   Dec 2, 2021   |   11:05AM   |   Washington, DC

Supreme Court Justice Samuel Alito appears willing to overturn Roe v. Wade based on his comments and questions during oral arguments Wednesday in a major Mississippi abortion case.

In Dobbs v. Jackson Women’s Health, Mississippi is challenging the precedent that forces states to legalize the killing of unborn babies for any reason up to viability. On Wednesday, its lawyers argued that Roe should be overturned and states should be allowed to protect unborn babies from abortion again.

Alito, a well-known conservative on the court, appeared receptive to the Mississippi argument. He repeatedly questioned lawyers representing the pro-abortion side about their claims that the Supreme Court should uphold Roe for the sake of precedent, according to The Hill.

“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Alito asked U.S. Solicitor General Elizabeth Prelogar.

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One of Prelogar’s arguments focused on stare decisis, or binding precedent. It’s the idea that the court should be extremely cautious about reversing previous rulings to prevent the appearance of being too political or being swayed by public opinion when its duty is to uphold the U.S. Constitution and serve as a check and balance to the other branches of government.

In her exchange with Alito, Prelogar argued that stare decisis is so important that even “egregiously wrong” precedents should be upheld unless circumstances have “materially changed.”

“I think that, at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case,” she told Alito.

“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?”

Plessy v. Ferguson allowed racial segregation. The Supreme Court later overturned the ruling in 1954 in Brown v. Board of Education.

The Federalist pointed out that Prelogar, an appointee of President Joe Biden, basically defended allowing racism to continue for the sake of precedent. Though she agreed with Alito that the racial segregation case was “egregiously wrong,” Prelogar would not agree that it should have been overturned for that reason alone.

Here’s more from the report:

Instead, she appealed to later Supreme Court precedent in Brown v. Board of Education in 1954, which ruled that racial segregation in government schools violated the Fourteenth Amendment and overturned Plessy.

“So is it your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided?” Alito asked, doubling down on his original question. …

Alito tried his original question one more time — and in clinging to abortion precedent, Prelogar couldn’t bring herself to admit that cases should ever be overruled strictly because they are egregiously wrong.

“This court, no, has never overruled in that situation just based on the conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance,” Prelogar said. “If stare decisis is to mean anything it has to mean that that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent itself is an additional layer of precedent that needs to be relied on and can form a stable foundation of the rule of law.”

Lawyers for Mississippi told the high court that much has changed in the nearly 50 years since Roe v. Wade, and science and medicine have made it clearer than ever that unborn babies are unique, living and valuable human beings who deserve a right to life.

Mississippi Attorney General Lynn Fitch asked the Supreme Court to overturn Roe and allow states to protect unborn babies again or, at the very least, modify the ruling so that Mississippi may prohibit abortions after 15 weeks as most other countries do.

If the court does, states would be allowed to protect unborn babies from abortion again, possibly from the moment of conception or at least after the first trimester, and groups estimate anywhere from a dozen to two dozen states would do so. As a result, thousands of babies could be spared from violent abortion deaths every year across America.

Polls consistently show that a strong majority of Americans oppose abortions in the second and third trimesters and many support heartbeat laws that protect unborn babies at their earliest stage of life.

The high court is expected to publish its ruling on the case sometime next year, potentially June 2022.