Alito's advice on how to stop abortion

Judge's legal brief is a smoking "cannon."


Lynn Harris
December 2, 2005 2:08AM (UTC)

With the nation glued yesterday to the Supreme Court and the Lachey-Simpson dust-up du jour, I wondered whether our early Christmas gift from the National Archives might go the way of certain other memos that all but a vocal minority seemed to ignore. But so far, the reaction to Judge Samuel Alito's legal wrecking ball -- crafted during his years with the Reagan administration and poised at Roe v. Wade -- has been, as National Public Radio put it, "huge." Ink spilled, petitions flew, bloggers blogged, senators shook their fists -- all promising signs. The question, however, remains: Could this be enough to bring him down?

In the 1985 memo, Alito -- long story short -- urged the DOJ to support state efforts to regulate abortion rights. (This strategy, as Salon's Tim Grieve has pointed out, is "awfully similar to the one antiabortion advocates are now pursuing in cases like those before the Supreme Court today.") "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?" Alito wrote, adding, "MMMWWWUUUUAAAA-HAA-HAAAAA!"

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In a detail as distasteful as it is damning, Alito also interchanges the word "doctor" with the hardly neutral term "abortionist." Would a receptionist say, "The abortionist will see you now"? I'm not saying pro-abortion-rights people should never, in theory, use the term. I'm just saying they don't. Only the other guys do.

Alito also wrote: "What, for example, is the objection to informing a woman that certain methods of birth control are 'abortifacients,' i.e., that they do not prevent fertilization but terminate the development of the fetus after conception?" Here's the objection: It's a lie.

But the fine print, while juicy, is beside the point. This memo, as a whole, is the smoking gun (or "cannon," as People for the American Way put it) that we'd been waiting for. Especially because, ironically, it was released along with Alito's responses to his Judiciary Committee questionnaire, in which he wrote: "Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case." Yuh.

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Quoted in the Los Angeles Times, Sen. Patrick Leahy, D-Vt., said, "This new information heightens concern about Judge Alito's views regarding 'settled law' and his eagerness to engage in activism to change law with which he disagrees. We now see why this administration has resisted so strenuously to the release of these sorts of memos."

Indeed! In fact, on the memo's original cover page, there appears an admonition penned by then Acting Solicitor General Charles Fried that reads: "I need hardly say how sensitive this material is, and ask that it have no wider circulation." Oh, well!

So again: Will this stuff stick? Of course, it's too soon to tell. (Unless you ask John of Americablog, who, upon the memo's release, declared: "The man is toast.") A lot depends on our hounding certain senators; a lot depends on certain senators' hounding Alito; and a lot depends on revealing Alito to senators' constituents for what he is: not only hostile to women's rights but also, frankly, squirrelly. Remember, this is a guy who -- after noting in a 1985 job application for a promotion that he was super-proud of his anti-choice work -- later defended himself to Sen. Dianne Feinstein, D-Calif., by saying, Hey, that was just enthusiastic-applicant-speak. (Oh, that makes it better.) He's also the guy who, employing skills learned during his Reagan indenture, said he had "no recollection" of being a member of Concerned "That Women and People of Color Are Taking Over" Alumni of Princeton.

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According to the Washington Post, "Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said the memo and job-application letter will be 'the lead question' he will pursue when he presides over Alito's confirmation hearings, to begin on Jan. 9. Specter said in an interview that he will ask Alito 'how he will factor whatever personal views he may have contrasted with the [Roe] case, which has stood for 32 years ... I want to hear what he has to say, and I want to hear how he says it.'" We want to hear how you say it, too, Senator. We'll be watching.


Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of BreakupGirl.net. She also writes for the New York Times, Glamour, and many others.

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