Memo: Alito Urged Reagan Administration to Challenge Roe v. Wade
From the Washington Post:
Supreme Court nominee Samuel A. Alito Jr. was an architect of the Reagan administration's failed 1985 attempt to have the high court consider overruling Roe v. Wade, according to a memo from the period released today.
Alito, then assistant to the solicitor general, urged his boss to use a case before the court to "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."
In the memo, Alito suggested that the government challenge Roe in an amicus , or friend-of-the-court, brief in an abortion case that itself did not challenge the 1973 decision legalizing abortion. This approach, he wrote, is better than a "frontal assault."
"It has most of the advantages of a brief devoted to the overruling of" Roe , he wrote. "It makes our position clear, does not even tacitly concede Roe 's legitimacy, and signals that we regard the question as live and open."
He added that the approach was "free of many of the disadvantages that would accompany a major effort to overturn Roe . When the court hands down its decision and Roe is not overruled," he reasoned, the decision "will not be portrayed as a stinging rebuke" to the administration.
The amicus brief submitted in Thornburgh v. American College of Obstetricians and Gynecologists did not have Alito's name on it. But it followed his recommendation.
The case stemmed from a Pennsylvania law imposing a variety of restrictions on abortion, including parental notification and requirements that physicians inform women of such matters as the possible availability of child support if they give birth instead of aborting.