As a factual matter, Supreme Court nominee’s Samuel Alito’s views on abortion rights haven’t been too big a mystery. We learned a month ago that he wrote a 1985 memo to the Justice Department describing his personal belief that “the Constitution does not protect a right to an abortion.” Ambiguous? Not so much.
In case there was some lingering doubt, however, more information has been released that makes Alito’s position even clearer.
As a Justice Department lawyer in the Reagan administration, Supreme Court nominee Samuel A. Alito Jr. helped devise a legal strategy to persuade the high court to restrict and eventually overturn Roe v. Wade , the historic decision legalizing abortion.
In a memo disclosed yesterday that he wrote in 1985 as an assistant to the solicitor general, Alito recommended that the administration submit a brief to the Supreme Court, asking it to uphold a Pennsylvania law that imposed a variety of abortion restrictions and “make clear that we disagree with Roe v. Wade .”
Alito argued in the 17-page document that stepping into the case, Thornburgh v. American College of Obstetricians and Gynecologists , would be a more effective strategy for President Ronald Reagan than a “frontal assault” on the landmark case and would not “even tacitly concede Roe ‘s legitimacy.” Disagreeing with the administration’s position, the court struck down the Pennsylvania law the following year.
OK, so Alito wants to overturn Roe, and as Sen. Chuck Schumer (D-N.Y.) put it, he “seems to have something of an agenda.” This should come as a big surprise to…absolutely no one. The next question, however, is what pro-choice Republicans are planning to do about it. I found this paragraph from the New York Times particularly interesting.
In addition to galvanizing the opposition of many liberal Democrats, the memorandum ratchets up the pressure on the handful of Republican senators who support abortion rights. Several, including Senators Susan Collins and Olympia J. Snowe, both of Maine, and Senator Lincoln Chafee, of Rhode Island, have said they will oppose a nominee committed to overturning Roe v. Wade. All three senators voted to confirm Chief Justice John G. Roberts Jr. None could be reached for comment.
That won’t last long.
These less-conservative Republican senators, two of whom are up for re-election in 2006, will have to decide whether to keep their pledge to oppose anti-Roe Supreme Court nominees. At this point, Alito hasn’t given them any real wiggle room. Roberts may have been able to hedge on the issue, but Alito’s unequivocal memos stating his beliefs on the issue give Chafee, Snowe, & Co. a choice — vote to confirm a justice who wants to overturn Roe or not.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), a pro-choice Republican who encouraged Bush to nominate justices who’d protect Roe, seems to already have an unrealistic hope about Alito’s views having changed over the years.
In a statement, Senator Arlen Specter of Pennsylvania, a Republican supporter of abortion rights who is chairman of the Judiciary Committee, said he held out the possibility that subsequent precedents might have altered Judge Alito’s views. “Many times the Supreme Court has decided the issue,” Mr. Specter said, singling out the 1992 case of Planned Parenthood v. Casey.
As the Center for American Progress explained today, the reality seems to suggest the opposite.
Actually, Casey provides the roadmap that Alito would likely pursue to overturn Roe. When Casey was argued before Alito’s court, Alito used the prevailing legal standard to uphold a spousal notification law that a majority of the Supreme Court later struck down. Alito’s ideological soulmates on the Supreme Court, Justices Scalia and Thomas, dissented from the majority, arguing that “The Roe Court reached too far when it…deemed the right to abortion to be ‘fundamental.'” Scalia and Thomas added “a woman’s decision to abort her unborn child is not…constitutionally protected.” Law Professor Jonathan Turley assures us “there will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues.”
It’s possible that the less-conservative, pro-choice Republican faction may not ultimately make the difference — there are only four of them, after all — and Alito could be confirmed without their support. It will be interesting, nevertheless, to see whether they’ll stick to their principles or not.