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Decades Ago, Alito Laid Out Methodical Strategy to Eventually Overrule Roe

WASHINGTON — In the spring of 1985, a 35-year-old Justice Department attorney, Samuel A. Alito Jr., warned the Reagan administration of a head-on attack on Roe v. Wade, the landmark ruling that declared a constitutional right to abortion . The Supreme Court wasn’t ready to overthrow it, he said, so pushing for it would backfire.

In a memo with advice on two pending cases Questioning state laws regulating abortion, Mr. Alito advocated focusing on a more incremental argument: The court should uphold the regulations as reasonable. That strategy would “advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, mitigate its effects.”

More than three decades later, Justice Alito has fulfilled that vision and cemented his place in history as the author of a consistent ruling that quashed Roe, along with a 1992 precedent that reaffirmed that decision, Planned Parenthood v. Casey.The reversal means tens of millions of women in conservatively controlled states will lose access to abortion.

The move has spotlighted a man who had otherwise been a less prominent member of the court’s conservative bloc since his appointment by President George W. Bush more than a decade ago. It has also drawn attention to glimpses of how he slowly and patiently tried to tear down abortion rights throughout his career before tearing them down in majority opinion on Friday.

“Roe was hugely wrong from the start,” Justice Alito wrote. “The 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 fueled debate and deepened divisions.”

Born in 1950 to a Catholic, Italian-American family, Justice Alito grew up in New Jersey. Two conservative flag bearers inspired his interest in political conservatism, he later noted, referring to the writings of William F. Buckley Jr. and Barry M. Goldwater’s 1964 presidential campaign.

Mr Alito became interested in constitutional law while studying, largely because he disagreed with the Supreme Court at the time criminal procedurethe establishment clause and redistributionhe has written† The court ruled in the 1960s on topics conservatives hated, including protecting the rights of suspects in police custody, limiting prayer in public schools, and requiring constituencies to have roughly equal populations.

He was a freshman law student at Yale Law School in 1973 when the Supreme Court ruled Roe. While progressives hailed the case as a momentous outcome for women’s equality and reproductive freedom, the constitutional reasoning drew sharp criticism across ideological boundaries—a pattern that Justice Alito, in his view, was pleased to emphasize.

Even “abortion supporters have found it difficult to defend Roe’s reasoning,” he wrote. One prominent constitutional scholar wrote that he would ‘vote for a statute very similar to the statute the Court terminates'[ed] drafting’ as he was ‘legislator’, but his assessment of Roe was momentous and brutal: Roe was ‘not a constitutional right at all’ and gave ‘almost no sense of an obligation to try to be.’”

Justice Alito quoted a 1973 Yale Law Review Article on the decision of John Hart Ely, who was teaching at the school at the time.

After graduation, he became a judge on the United States Court of Appeals for the Third Circuit, eventually landing a job as a federal prosecutor in New Jersey. When Ronald Reagan won the 1980 presidential election, he followed the path of many young conservative lawyers, joining the administration and working in the attorney general’s office.

Among political appointees, overthrow Roe was an important long-term target for the Reagan administration. It brought together the aspirations of elitist conservative legal thinkers with those of the religious right. But in 1983over the objections of the Reagan administration, the Supreme Court instead upheld Roe

In the spring of 1985, the two cases came up that challenged state laws regulating abortion, including requiring doctors to tell women who wanted the procedure detailed information about the risks and “unforeseen adverse effects,” the development of fetuses. and the availability of adoption services or child support.

In a memo on the cases, Mr. Alito took not only tactical acumen but also personal passion, taking offense at a judge’s objection that forcing women to listen to details about fetal development before their abortions “would cause emotional distress, fear, guilt and in some cases cases increased physical pain.”

Well, he wrote: Such results “are part of the responsibility of moral choice.”

Later that year, Mr. Alito applied for another position at the Department of Justice and proudly mentioned his role in devising a strategy for those cases. “Personally, I believe very strongly,” he said wrote in an applicationthat “the Constitution does not protect the right to abortion”.

Years later, when those documents were unveiled during his Supreme Court confirmation, he assured senators that while that statement reflected his views in 1985, he would approach abortion cases with an open mind as a judge, with due respect for precedent and without ideology. agenda .

“When someone becomes a judge,” he said, “you really have to put aside the things you did as a lawyer in earlier moments in your legal career and think about legal issues the way a judge thinks about legal issues.”

Before joining the Supreme Court, Judge Alito was a member of the United States Court of Appeals for the Third Circuit. As an appellate judge, he had no power to overrule Roe. But he sometimes seemed to look for ways to brush it off on abortion-related matters, in line with his formative advice during the Reagan administration.

Most notable was Planned Parenthood v. Casey, the Supreme Court case in which the Supreme Court reaffirmed Roe’s central position but allowed states to impose more restrictions in the first trimester. It challenged a Pennsylvania law that imposes requirements for an abortion, including a waiting period, parental consent for minors, and notifying a woman’s husband.

Before the case went to the Supreme Court, the case came before a Third Circuit panel, which also included Judge Alito. The other two judges on the panel voted to uphold most of the law, but they removed the provision requiring marriage notification. Judge Alito written separately to disagree with that part and say it should stay as well.

That requirement, he argued, did not place an “undue burden” on access to abortion, so it was sufficient that “Pennsylvania has a legitimate interest in advancing the husband’s interest in the fate of the fetus.” Nor, he wrote, should judges question the state legislature’s decisions about the appropriateness of various exceptions it has included for particular cases.

And in 2016 and 2020, he was among the dissenters when the court narrowly voted to repeal nearly identical laws in Texas and Louisiana that strictly regulated abortion clinics in ways that forced many to shut down.

The majority said in 2016 that Texas law placed an unnecessary burden on access to abortion and in 2020 that a challenge to Louisiana law was checked by its previous precedent. Both times, Justice Alito wrote long opinions the challenges for those laws say should have been rejected for procedural reasons

But in 2016 and 2020, as in 1985, another all-out assault on abortion rights would have failed. With Judge Ruth Bader Ginsburg still on the bench, there were not five votes to overthrow Roe. This year, there was no longer a need for a restrained, slower-burning approach.

On the objections of Chief Justice John G. Roberts Jr. — who agreed that a Mississippi law banning abortions after 15 weeks should be enforced, but said the “dramatic and consistent majority ruling is not necessary to decide the case for us” and violated the law’s principle of judicial restraint — the long-awaited time for a direct attack on Roe had arrived.

“Abortion poses a profound moral question,” Judge Alito wrote. “The Constitution does not prohibit the citizens of any state from regulating or banning abortion. Roe and Casey have usurped that authority. We now reject those decisions and return that authority to the people and their elected representatives.”

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