Bench Memos

NRO’s home for judicial news and analysis.

Re: Alito’s Advice on the Thornburgh Abortion Case


As I anticipated, the media find it remarkable that an attorney in the Solicitor General’s office would actually be working to advance the declared goals of the executive branch. Given the practical impossibility of responding to all the media distortions about Alito’s memo, let me focus on today’s Washington Post article. A few observations:

1. The headline and the opening paragraphs would leave the uninformed reader with the mistaken impression that Alito was a key player in getting the Reagan administration to oppose Roe v. Wade. Not until a dependent clause at the end of the seventh paragraph does the reader learn that “Reagan’s top aides had instructed the [D]epartment [of Justice] to work to overturn Roe.”

2. The article finds it noteworthy that Alito “referred to a doctor who performs the procedure as an ‘abortionist.’” In my quick review of Alito’s memo, I have found more than 15 instances in which he used the term “physician” or “doctor” and only one when he used the term “abortionist.” Maybe I missed one or two of the latter, but the impression the article leaves is hardly accurate. Moreover, unless we are all obligated to use NARAL’s Brave New World lexicon, what is wrong with identifying a doctor who does abortions as an “abortionist”? If we can refer to a doctor who does podiatry as a podiatrist and a doctor who does cardiology as a cardiologist, why can’t we refer to a doctor who does abortions as an abortionist? I recognize that the term has acquired a certain stigma, but I think that most people would agree that it has fairly earned it.

3. The article also states that Alito described as “almost incredible” a previous decision that had struck down an ordinance “that he said was ‘designed to preclude the mindless dumping of aborted fetuses into garbage piles.’” But the “designed to” phrase that the article attributes to Alito was in fact the city’s own explanation of its ordinance. Alito’s own description includes quotes and a citation, so it is difficult to imagine how the Post’s reporters could have mistaken those words for his own. Moreover, the article hides the fact that Alito gave a compelling explanation for his judgment that the previous decision was “almost incredible”: The terms “humane and sanitary” that the Court found impermissibly vague are used in “countless laws,” and Congress has even mandated the “humane . . . disposal of excess wild free-roaming horses.”

4. The article then states that the Alito memo “added fuel to the already-inflamed debate over [Alito's] candidacy.” This would seem a grossly exaggerated—and, it would seem, wishful—description of the state of play.

As one who believes that all the justices are duty-bound by their oath of office to put an end to the unconstitutional power grab of Roe v. Wade, I hope very much that a Justice Alito will help restore abortion policy to the democratic processes. But I don’t see how DOJ attorney Sam Alito’s memo on Thornburgh in 1985 has any clear implications for how a Justice Alito would address Roe two decades later. I agree, in other words, with law professor and New Republic legal editor Jeffrey Rosen, who told NPR yesterday that the memo “doesn’t to my mind make it more or less likely that Alito on the Court would actually overturn Roe v. Wade.” It’s worth noting in this regard that Charles Fried, who as Alito’s boss in the SG’s office argued for Roe to be overturned, now favors maintaining Roe.

As a judge, Alito has amply demonstrated, on abortion and other issues, that he will neutrally apply the law and not indulge any particular policy preferences. That’s exactly what I want in a justice. And it’s exactly what Schumer and the Left, who rely on the courts to impose policy preferences that they can’t get enacted through the legislative processes, oppose.


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