Alito and the Right to Privacy, Part 5

Documents released on Friday included a memo Judge Alito wrote in 1985 in which he recommended to the Solicitor General 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."

Charles Fried, the Solicitor General, in 1985, wrote of the memo, "I need hardly say how sensitive this material is, and ask that it have no wider circulation."

Alito also wrote:

"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. 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?"

Mr. Alito said his graduated approach was better than a "frontal assault on Roe v. Wade," because "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 also wrote that the Administration could try "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."

This story was first broken by the The Associated Press.