A28 EZ RE THE WASHINGTON POST.SUNDAY, MAY 8 , 2022
BY GILLIAN BROCKELLIn 1985, Albert Lauber was a
government attorney assigned to
write part of a legal brief when,
he remembered l ater, a co-worker
“just walked into my office one
day and said, ‘You know, this is a
big assignment and do you want
some help?’ ”
The co-worker was 35-year-old
Samuel A. Alito Jr., and the brief
was about a Pennsylvania law
restricting abortion that Presi-
dent Ronald Reagan wanted to
defend before the Supreme
Court. Alito volunteered to help
with the brief, Lauber said, in
what was known as the “Thorn-
burgh case.” He also wrote a
17-page memo in which he ad-
vised the attorneys representing
the Reagan administration on
how best to “make clear that we
disagree with Roe v. Wade.”
Six months later, Alito applied
for a more senior job in the
Justice Department. In a cover
letter to the attorney general, he
wrote that as a “life-long regis-
tered Republican,” he was “par-
ticularly proud” to have worked
on cases arguing “that the Consti-
tution does not protect a right to
an abortion.”
Nearly four decades later, Ali-
to, now a Supreme Court justice,
may have reached his pinnacle in
that regard. In a leaked draft
opinion published Monday in Po-
litico, Alito appears to write for
the majority in overturning not
only the right to an abortion
established in Roe v. Wade but
also the court’s 1992 decision in
Planned Parenthood v. Casey,
which affirmed Roe.
In an echo of Alito’s 1985
words, the document states that
“no such right [to an abortion] is
implicitly protected by any con-
stitutional provision.”
The two statements, made 37
years apart, are remarkably con-
sistent — especially considering
everything that came in between
them.
Alito was nominated to the
Supreme Court by President
George W. Bush in 2005. Previ-
ously, he had served as a federal
appeals court judge for 15 years
after being appointed by Bush’s
father, President George H.W.
Bush.
When he was picked for the
high court, Alito seemed like a
moderate in the mold of the new
Chief Justice John G. Roberts Jr.,
who declined to share his person-
al views on Roe v. Wade during
his confirmation hearings but
had made clear he thought it was
“settled law.” The Bush adminis-
tration downplayed Alito’s role in
defending the Thornburgh case,
saying he hadn’t been involved in
writing the legal brief.
Then, as part of the confirma-
tion process, the National Ar-chives released hundreds of pag-
es of documents, including the
cover letter stating his personal
views and the memo on the
Thornburgh case.
“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?” he wrote in the 1985
memo, before detailing a legal
strategy for Reagan administra-
tion lawyers to defeat Roe v.
Wade altogether.
Clearly, he had played more of
a role in Thornburgh than the
Bush White House had previous-
ly stated.
Unlike Roberts, however, he
also had a long record as a judge
by then, and his defenders point-
ed to it. Twice, he had had theopportunity to rule against abor-
tion rights, and twice he voted to
uphold Roe.
But there was also Planned
Parenthood v. Casey. Before the
case made it to the Supreme
Court, Alito had been the dissent-
ing judge in the U.S. Court of
Appeals for the 3rd Circuit’s deci-
sion. He would have upheld all
the abortion restrictions the case
challenged, including a provision
requiring wives to inform their
husbands before getting an abor-
tion.
Alito was nominated to the
Supreme Court to replace Justice
Sandra Day O’Connor, who,
though a conservative, had been
a key vote in protecting abortion
rights. At the confirmation hear-
ings, his letter and the memo
were a major focus of questioningby both Democrats and pro-abor-
tion-rights Republicans such as
Sen. Arlen Specter (R-Pa.). Sen.
Richard J. Durbin (D-Ill.) tried to
pin down Alito’s views, asking
point-blank, “John Roberts said
that Roe v. Wade i s the settled lawof the land. Do you believe it is
the settled law of the land?”
Roe was “an important prec-
edent” that had “been challenged
on a number of occasions,” Alito
responded. The Supreme Court
had “reaffirmed the decision,
sometimes on the merits, some-
times, in Casey, based on stare
decisis [using previous prec-
edent].”
“The more often a decision is
reaffirmed, the more people tend
to rely on it,” he said, and “I think
that’s entitled to considerable
respect, and of course, the more
times that happens, the more
respect the decision is entitled to,
and that’s my view of that. So
it is a very important precedent
that —”
Okay, Durbin interrupted, but
is it the settled law of the land?
“If settled means that it can’t
be re-examined, then that’s one
thing,” Alito equivocated. “If set-
tled means that it is a precedent
that is entitled to respect as stare
decisis, and all of the factors that
I’ve mentioned come into play,
including the reaffirmation and
all of that, then it is a precedent
that is protected, entitled to re-
spect under the doctrine of stare
decisis in that way.”
“How do you see it?” Durbin
asked. Alito answered with the
careful and evasive language that
has become a standard of these
types of hearings, saying that
since there were cases about
abortion before the court, he
couldn’t comment.
Justice Clarence Thomas had
been similarly evasive in 1991,
testifying that he had no personal
opinion on Roe v. Wade. Just a
few months later, he joined the
dissent in Planned Parenthood v.
Casey, claiming Roe had been
incorrectly decided — and
prompting some abortion-rights
activists to argue that Thomas
had perjured himself.
But just as they had for Thom-
as, Alito’s evasive answers
worked: He was confirmed on a
58-to-42 vote — at the time one of
the narrowest votes ever to con-
firm a justice.
Since then, the Senate votes to
confirm justices Neil M. Gorsuch,
Brett M. Kavanaugh, Amy Coney
Barrett and Ketanji Brown Jack-
son have been narrower.RETROPOLIS
Alito was ‘proud’ of fighting to overturn Roe in 1985
From Reagan attorneybattling the 1973 ruling to
author of draft striking itMELINA MARA/THE WASHINGTON POST
Supreme Court Justice Samuel A. Alito Jr., seen in 2005 as a nominee. Alito wrote the leaked draft opinion overturning Roe v. Wade.“What can be made ofthis opportunity toadvance the goals ofbringing about theeventual overruling ofRoe v. Wade?”
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