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Alito Wrote Abortion Isn't a Protected Right

Documents released Monday shed new light on how Supreme Court nominee Samuel Alito may rule on abortion cases in the future.

Among some 200 pages made available by the Ronald Reagan and George H.W. Bush Presidential Libraries is a 1985 job application in which Alito makes his case for a position in the office of then-U.S. Attorney General Edwin Meese. At the time, Meese was pushing for a wholesale reevaluation of government legal policy along conservative lines.

"I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration," Alito wrote on the application's personal qualifications statement. "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed, and that the Constitution does not protect a right to an abortion."

At the time, Alito had spent his entire career as a government attorney, and was trying to land his first position as a political appointee. As such, it was in his best interests to portray himself as a staunch conservative — just as it is now in his best interests to portray himself as someone who is not an ideologue.

The new documents are hardly a revelation. Soon after Alito was nominated, his mother told reporters that "of course" her son opposes abortion. As a judge on the 3rd Circuit Court of Appeals, Alito voted in favor of part of a law that would have required wives to notify their husbands before getting an abortion. The Supreme Court later disagreed with him — in the case of Planned Parenthood vs. Casey, the 1992 case that reaffirmed the validity of the Roe v. Wade decision legalizing abortion.

Most senators — liberal and conservative — believe that Alito personally objects to abortion. But the question remains as to whether he would overturn Roe v. Wade. At the center of that debate is whether Alito views the Roe decision as "settled law." The case has been upheld repeatedly over the past three decades since it was decided in 1973. Even if Alito would have personally decided the case differently had he been on the court back then, his respect for precedent — or what's known in legal circles as "stare decisis" — is a factor to consider when trying to forecast how he would rule on abortion cases as a Supreme Court Justice. In fact, Alito has said in private meetings with Democratic senators that Roe "deserved great respect."

That said, stare decisis is not absolute, and there are reasons to overturn cases even if they are settled law, as Chief Justice John Roberts made a point of mentioning at his confirmation hearings in September.

Roberts himself wrote many controversial government documents during his career. But during his confirmation hearings, he successfully made the case that they were the views of his employer at the time, not his own.

That argument won't fly with this letter, however, because Alito writes in the letter itself that these are legal positions in which he personally believes very strongly. Still, he can likely defend himself against other documents he may have written as a government lawyer with the explanation that he was writing on behalf of his client.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
Prior to his retirement, Robert Siegel was the senior host of NPR's award-winning evening newsmagazine All Things Considered. With 40 years of experience working in radio news, Siegel hosted the country's most-listened-to, afternoon-drive-time news radio program and reported on stories and happenings all over the globe, and reported from a variety of locations across Europe, the Middle East, North Africa, and Asia. He signed off in his final broadcast of All Things Considered on January 5, 2018.