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Friday, December 23, 2005

BREAKING NEWS ~ Alito wrote in 1985 that Roe should be overturned, docs show
Bernard Hibbitts at 9:43 AM ET

[JURIST] AP is reporting that new US Department of Justice documents released Friday by the National Archives include a 1985 statement by US Supreme Court nominee Samuel Alito [JURIST news archive] that the landmark Roe v. Wade abortion ruling should be overturned. Review the full text of the newly-released documents.

10:29 AM ET - The June 3, 1985 Alito memo on Thornburgh v. American College of Obstetricians and Gynecologists [1986 US Supreme Court ruling text] cited by AP [report] is merely a corrected version of a May 30 draft memo [JURIST report] by Alito released by the Archives on November 30 which has already drawn fire from Democrats. In both, Alito wrote:

...no one seriously believes that the Court is about to overrule Roe v. Wade, 410 U.S. 113 (1973). But the Court's decision to review these cases nevertheless may be a positive sign. Both court of appeals decisions purported to apply Supreme Court precedents in areas that the Court has already (and recently) explored. There are no conflicting court of appeals decisions. If the Supreme Court had agreed with the Third and Seventh Circuit decisions, it most likely would have summarily affirmed. Thus, by taking these cases, the 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?...

We should file a brief as amicus curiae supporting appellants... In the course of the brief, 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. Then, without great formal discussion of levels of scrutiny or degrees of state interest, we should demonstrate that many of the provisions struck down by the Third and Seventh Circuits are eminently reasonable and legitimate and would be upheld without a moment's hesitation in other contexts. If the Court can be convinced to sustain these regulations, it may have to adjust its standard of review....

I find this approach preferable to a frontal assault on Roe v. Wade. It has most of the advantages 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. At the same time, it is 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, the decision will not be portrayed as a stinging rebuke. We also will not forfeit the opportunity to address--and we will not prod the Court into summarily rejecting--the important secondary arguments outlined above.
Review the full text of the Alito recommendation material [PDF].

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