WASHINGTON — In the spring of 1985, a 35-year-old lawyer in the Justice Department, Samuel A. Alito Jr., cautioned the Reagan administration against mounting a frontal assault on Roe v. Wade, the landmark ruling that declared a constitutional right to abortion. He stated that the Supreme Court was not ready for it to be overturned so it could backfire.
In a memo advising on two cases that challenged state laws regarding abortion, Mr. Alito recommended that we focus on a more incremental argument. The court should uphold the regulations to be reasonable. That strategy would “advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.”
Justice Alito, more than three decades later has fulfilled this vision. He is the author of a consequential ruling that overturned Roe and a 1992 precedent that reaffirmed Roe’s decision, Planned Parenthood.. The reversal means tens of millions of women in conservative-controlled states are losing access to abortion.
The move has cast a spotlight on a man who has otherwise been a lower-profile member of the court’s conservative bloc since his appointment by President George W. Bush more than a decade ago. It has also brought attention to glimpses of his slow and patient approach to removing abortion rights throughout his career, before finally destroying them in Friday’s majority opinion.
“Roe was egregiously wrong from the start,” Justice Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Justice Alito was born in 1950 to a Catholic, Italian American mother. He grew up in New Jersey. Two conservative standard bearers inspired his interest in political conservatism, he later noted, pointing to the writings of William F. Buckley Jr. and Barry M. Goldwater’s 1964 presidential campaign.
He was interested in constitutional law while in college because he disagreed at the time with the Supreme Court on criminal procedure and the establishment clause. In the 1960s, the court issued rulings on topics that conservatives didn’t like, such as protecting suspects in police custody, limiting prayer at public schools, and requiring that electoral districts have roughly equal populations.
In 1973, he was a Yale Law School first-year student when Roe was decided by the Supreme Court. While progressives hail the case as a momentous outcome for women’s equality and reproductive freedom, its constitutional reasoning drew sharp criticism across ideological lines — a pattern Justice Alito stressed with apparent relish in his opinion.
Even “abortion supporters have found it hard to defend Roe’s reasoning,” he wrote. “One prominent constitutional scholar wrote that he ‘would vote for a statute very much like the one the Court end[ed] up drafting’ if he were ‘a legislator,’ but his assessment of Roe was memorable and brutal: Roe was ‘not constitutional law’ at all and gave ‘almost no sense of an obligation to try to be.’”
Justice Alito was using a 1973 Yale Law Journal article by John Hart Ely on the decision, which John Hart Ely taught at the school at that point.
After graduating, he was appointed as a clerk to the U.S. Court of Appeals Third Circuit Judge, and eventually, a federal prosecutor in New Jersey. Once Ronald Reagan won the 1980 presidential election, he followed the path of many young conservative lawyers, joining the administration and working in the solicitor general’s office.
Overturning is a favorite among political appointees Roe was a long-term goal of the Reagan administration. It merged the views of elite conservative legal thinkers and those of the religious right. But in 1983, over the Reagan administration’s objections, the Supreme Court instead reaffirmed Roe.
In the spring of 1985, the two cases arose challenging state laws that regulated abortion, including by requiring doctors to tell women seeking the procedure detailed information about its risks and “unforeseeable detrimental effects,” the development of fetuses, and the availability of adoption services or paternal child support.
In a memo on the cases, Mr. Alito displayed not only tactical acumen but personal passion, taking umbrage with a judge’s objection that forcing women to listen to details about fetal development before their abortions would cause “emotional distress, anxiety, guilt and in some cases increased physical pain.”
Good, he wrote: Such results “are part of the responsibility of moral choice.”
Later that year, Mr. Alito applied to another position at the Justice Department. He proudly cited his role in developing a strategy for those cases. “I personally believe very strongly,” he wrote in an application, that “the Constitution does not protect a right to an abortion.”
Years later, when the documents were revealed during his Supreme Court confirmation, Senators were assured that although the statement reflected his views in 1985 he would approach abortion cases as a justice, with due respect to precedent and without an ideological agenda.
“When someone becomes a judge,” he said, “you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.”
Justice Alito was a member of the U.S. Court of Appeals, Third Circuit. He was an appellate judge and did not have the power to overrule Roe. However, he did sometimes seem to try to find ways to get around Roe in cases that involved abortion. This is in keeping with his Reagan administration formative advice.
The most famous was Planned Parenthood. This case saw the Supreme Court affirm the central holdings of Roe, but allow states to impose additional restrictions in the first trimester. It involved a challenge to a Pennsylvania law imposing requirements before an abortion, including a waiting period, parental consent for minors and notifying a woman’s husband.
The case was first heard before the Supreme Court. It was then heard by a Third Circuit panel, which included Judge Alito. The law was upheld by the other two judges, but the provisions requiring spousal notification were struck down. Judge Alito wrote separately to disapprove this section, stating that it should also stand.
That requirement, he argued, did not impose an “undue burden” on abortion access, so it was enough that “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus.” Nor, he wrote, should judges second-guess the state legislature’s decisions on the adequacy of several exceptions it included for certain cases.
In 2016, and 2020, he was one of the dissenters who narrowly voted to overturn nearly identical Texas and Louisiana laws that tightly regulated abortion clinics. Many were forced to close.
In 2016, the majority argued that Texas’ law placed an undue burden on accessing abortion. The majority also stated that Louisiana’s earlier precedent was in control of any challenge to Louisiana’s law. Justice Alito wrote lengthy opinions stating that the challenges to these laws should have been rejected on procedural grounds.
A new frontal attack against abortion rights in 2016 and 2020 would have failed, just like in 1985. Justice Ruth Bader Ginsburg was still on the bench and there were not five votes needed to overturn Roe. This year, there was no more need for a slow-burning, restrained approach.
Over the objections of Chief Justice John G. Roberts Jr. — who agreed that a Mississippi law banning abortions after 15 weeks should be upheld, but said that the majority’s “dramatic and consequential ruling is unnecessary to decide the case before us” and violated the principle of judicial restraint — the long-envisioned time for a direct assault on Roe had come.
“Abortion presents a profound moral question,” Justice Alito wrote. “The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe & Casey took that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Source: NY Times