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Alito abortion memo drew cautionary response

Supreme Court nominee Samuel Alito said in a 1985 document that the landmark Roe v. Wade ruling legalizing abortion should be overturned.
US Supreme Court nominee Alito attends meeting on Capitol Hill in Washington
U.S. Supreme Court nominee Judge Samuel Alito, making the rounds in Washington to seek support on Dec. 14. Jason Reed / Reuters file
/ Source: The Associated Press

A June 1985 memo by Supreme Court nominee Samuel Alito arguing that the Roe v. Wade decision legalizing abortion should be overturned set off alarms in the Reagan administration, prompting a senior official to caution that the correspondence should be kept quiet, a new document released Friday shows.

In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said the government “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.”

The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages were made public.

The memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November — but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying that it had to be kept quiet.

A wedge issue
Abortion has become a wedge issue in connection with Alito’s confirmation to take the Supreme Court seat held by Associated Justice Sandra Day O’Connor, who is retiring.

The federal appellate court judge, who faces confirmation hearings starting on Jan. 9, has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O’Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman’s constitutional right to an abortion.

The documents released Friday are the latest involving Alito and abortion.

In paperwork released earlier from Alito’s time in the Justice Department’s solicitor general’s office, he recommended a legal strategy of dismantling abortion rights piece by piece. And as part of an application for a job as deputy assistant attorney general, Alito said the Constitution does not guarantee abortion rights.

The latest memo is certain to stir controversy as the Senate prepares for the confirmation hearings.

Fried took note of the implications of the emerging policy in his introduction to the June 1985 memo. “I need hardly say how sensitive this material is, and ask that it have no wider circulation,” he said.

In the memo, Alito focused on a woman making an informed choice and states rights.

‘A moral choice’
“While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus,” Alito wrote. “Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?”

Consistent with his previous writings, Alito said these arguments would be preferable to a “frontal assault on Roe v. Wade.”

“It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open,” Alito wrote.

In his memo, Alito said the government, in its argument, might be able to nudge the court and “to provide greater recognition of the states’ 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.”