More Alito Abortion Insight

In 1985 memo, Supreme Court nominee advocated Roe overturn

View Document

More Alito Abortion Insight

NOVEMBER 30--For those seeking further insight into Samuel Alito's abortion position, a newly released 1985 memo drafted by the Supreme Court nominee offers additional evidence of his opposition to Roe v. Wade and his desire to regulate a woman's right to choose.

In his memo, an excerpt of which you'll find here, Alito recommended that the U.S. Solicitor General file amicus briefs in connection with appeals of two Court of Appeals decisions that struck down Pennsylvania and Illinois laws regulating abortion. While noting that the U.S. Supreme Court, which had agreed to review the two appellate decisions, was unlikely to reverse Roe, Alito, an Assistant to the Solicitor General, surmised that the high court "may be signalling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?"

In the amicus briefs, Alito recommended, "we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled." Addressing the portion of the Pennsylvania case dealing with what a woman should be told prior to an abortion, Alito wrote that if "abortion is a woman's choice, as the Court has held, then surely the choice should be informed."

At the memo's close, Alito wrote that "abortion is not unregulable" and advocated that the Reagan administration try to "nudge" the Supreme Court toward recognizing a state's "interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases."

A "frontal assault" on Roe, Alito concluded, was not preferable. A more measured approach "makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open." (11 pages)