Alito Argued to Overturn Roe in 1985 Memo

Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January's confirmation hearings.

In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said that the government "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."

The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages were made public.

Abortion has become a wedge issue in connection with Alito's confirmation to take the Supreme Court seat held by Associated Justice Sandra Day O'Connor, who is retiring. The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.

The documents released Friday are the latest involving Alito and abortion.

In paperwork released earlier from Alito's time in the Justice Department's solicitor general's office, he recommended a legal strategy of dismantling abortion rights piece by piece. And as part of an application for a job as deputy assistant attorney general, Alito said the Constitution does not guarantee abortion rights.

The latest memo is certain to stir controversy as the Senate prepares for confirmation hearings for Alito, slated to begin Jan. 9.

In the memo, Alito focused on a woman making an informed choice and states rights.

"While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus," Alito wrote. "Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?"

Consistent with his previous writings, Alito said these arguments would be preferable to a "frontal assault on Roe v. Wade."

"It has most of the advantage 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," Alito wrote.

In his memo, Alito said the government, in its argument, might be able to nudge the court and "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."