Your argument for informed consent is touching but in reality abortion opponents have made a concerted effort to use informed consent principles not to inform patients but to distort the doctor-patient relationship. We all know how super fantastic conservative science is and the anti-abortion crowd has its own paper mills cranking out evidence linking abortion to everything from breast cancer to suicide. Some anti-abortion activists have argued that informed consent should include requiring women to view a sonogram of the fetus. Informed consent laws are an attempt to force lousy science and moral judgement into the process already complicated enoug.

If you believe that making sure that a woman choosing to have an abortion is fully informed is an impediment rather than a regulation, then we clearly disagree. I believe that the memo is clear that its purpose is to be able to enact such “impediments” in a manner that would stand the scrutiny of the courts. To say that by wanting to ultimately overrule Roe the goal must be to outlaw abortions is an assumption on your part and not grounded in any language in the memo.

Thank you both for your reasoned arguments and for a civil and respectful debate. It’s nice to see that it can actually be done. Extremely rare on this site.

Secondly, any large attorney general office including the U.S. Attorney’s Office (the largest of them all) has different divisions - criminal, civil, consumer protection, and often others. It doesn’t follow that because the Civil Division or the Office of Legal Policy were desirous of filing a amicus that Alito’s boss was looking to get involved. In this same vein, it doesn’t folloow that the fact that the Civil division and the Office of Legal Policy wanted to file a brief in a particular case that an attorney would outline a whole strategy of oblique attacks with the view of overturning a decision that wasn’t being challanged in the amicus. In other words, Roe wasn’t being challanged. A Pennsylvania statute was. Rather than focus on the issues involved in the Pennsylvania case, Alito chose to outline a strategy to dismantle Roe. That is very clear from the memo. Lastly, assuming that it was true that his boss wanted to get involved- I think his employer (the U.S. Attorney) would have simply done it, that is gotten involved without asking Alito if he agreed.

The disagreement expressed in the memo wih respect to Roe is the absoluteness of the first trimester in that no court at that point had upheld any reasonable restrictions, regulations, etc. (i.e., informed consent, reporting information, etc.). The memo was looking for ways to be able to put in place these regulations which until then had been thwarted by the courts’ strict interpretation of Roe. Thus, the need to weaken and ultimately overturn Roe in order to make the abortion scheme more regulable. Obviously the courts were no more likely to overturn Roe then than now, so the strategy would be to ultimately weaken it. The memo sums up with its central point that “abortion is not unregulable.”

As for whether his employer wanted to get involved, of course they did, in order to further the Administration’s views. The memo says as much:

The Civil Division and the Office of Legal Policy recommend amicus participation in support of the constitutionality of the state legislation. I agree.

“I find this approach (indirect attack on Roe) preferable to a frontal assault on (Roe). It has most of the advantages of a brief overruling (Roe): it makes our position clear, does not even tacitly concede Roe’s legitimacy (Note: if Alito wasn’t urging a position that would ultimately ban abortions why would he be concerned with appearing to concede Roe’s legitimacy? If, as you argue he did not want to make abortions illegal why didn’t he concede Roe’s general intent, that is that abortions be legal?), and signals that we regard the question as live and open. At the same time, it is free of many of the disadvantages that would accompany a major effort to overturn Roe. When the Court hands down its decision and Roe is not overruled, the decision will not be portrayed as a stinging rebuke. We also will not forfeit the opportunity to address–and we will not prod the court into summarily rejecting–the important secondary arguments outlined above.”

Note how he characterizes the argument you advance as his primary position as being a “secondary argument”. He does so because obviously, his ultimate goal is overturning Roe and banning legal abortions.

The legislation he was commenting on was simply something he thought could be used to get a foot in the door so to speak towards the purpose of weakening Roe. As he says, “If the court can be convinced to sustain these regulations, it may have to adjust its standard of review.” Meaning in this case, that the court might be convinced to allow more state regulation over abortion issues. This particular issue was only one of several that he thought could be used to further the purpose of weakening Roe. As he further states,”We need not raise all of these issues. Our point is that even after Akron, abortion is not unregulable. There may be an opportunity to nudge the court toward the principles in Justice O’Conner’s dissent, 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 supporting cases.”

This is troubling as this memo seems to show not that he was simply arguing a case for his boss, but rather independently advancing a position and an overall strategy towards weakening Roe with the hope that his boss (The Justice Department) would take up the case and help further that strategy.

My question is: Why is Roe v Wade immutable? The decision is thirty years old, and yet nothing has ever occurred in three decades to suggest the slightest change to a decision that’s a third of a century old.

Odd, don’t you think?

The legislation supported in the memo appear wholly reasonable Women are not going to be sent to the back alley simply because before having an abortion they must first be told of the risks to themselves, among other things (which the memo concedes is probably done anyway on a voluntary basis, so why can’t it be mandatory? - which to do so, would contradict Roe).