As the Supreme Court hears oral arguments today in cases that could chip away at abortion rights, a memorandum just released by the National Archives seems to underscore court nominee Samuel Alito's interest in rolling back the protections of Roe v. Wade.
Writing as a lawyer in the Solicitor General's Office in 1985, Alito said that "no one seriously believes that the [Supreme Court] is about to overrule Roe v. Wade." But in recent court actions, Alito said he saw a "positive sign" that a majority of the justices might be willing to "cut back" Roe's protections. "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?" he asked.
His answer: The Solicitor General's Office should file an amicus brief in then-pending cases in which "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, Alito said, the Solicitor General's Office should argue to the court, "without great formal discussion of levels of scrutiny or degrees of state interest," that some of the state efforts to limit abortion rights that had been struck down in the name of Roe were in fact "eminently legitimate and reasonable."
Alito wrote optimistically about "an opportunity to nudge the court ... 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."
Alito concluded: "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."
The strategy Alito articulated in 1985 is, of course, awfully similar to the one antiabortion advocates are now pursuing in cases like those before the Supreme Court today. Roe itself isn't on the chopping block just yet, but by pushing back against state regulations -- a parental notification law was at issue in one of the cases today -- antiabortion groups hope they can undercut Roe so thoroughly that it ultimately means nothing even if it's never reversed.
In 1985, at least, Alito seemed to see things exactly the same way. Maybe he's different now -- even judicial nominees can change, the president's protestations notwithstanding -- but at the very least the 1985 memo suggests that senators should think twice when they hear Alito talking about "settled law" and "respect for precedent" when his confirmation hearings begin next year.