Thoughts on the Thornburgh Memo

Wendy Long and Matthew Franck do a good job analyzing the 1985 memo to then-Solicitor General Charles Fried concerning the Thornburgh and Diamond abortion cases. However, let me add this: There is nothing in Samuel Alito's record that tells us with any certainty that he would vote to overrule Roe v. Wade as a Supreme Court justice.

One must remember that in 1990, then-NOW President Molly Yard claimed that the “almost Neanderthal” David Souter imperiled “women’s lives." In his opening remarks at Souter's confirmation hearing Senator Ted Kennedy decried the fact that during Souter's tenure as New Hampshire's state attornery general he "referred to abortion as the 'killing of unborn children' and opposed the repeal of an unconstitutional [New Hampshire] abortion statute." Just as worrisome for Senator Kennedy was that as a New Hampshire Supreme Court judge Souter "wrote a dissenting opinion arguing that the meaning of the State constitution should be confined to the specific intent of those who drafted it in the 18th century." In 1992, Justice Souter co-authored the lead opinion in the case that reaffirmed Roe.

In 1975 the country was warned by the Woman's Legal Defense Fund that Justice Stevens would show “blatant insensitivity to discrimination against women” on the Supreme Court if confirmed. Seventeen years later he voted with Souter in Casey.

This is not to say that we here at CFJ think that Judge Alito is another Souter or Stevens. Our firm belief is that he will be an excellent constitutionalist Supreme Court justice. However, it is a little ridiculous to claim to know that Judge Alito would overrule Roe, especially given his respect for stare decisis.