Memo: Alito Urged Government To Challenge Roe v. Wade

[Gold9472]

Memo: Alito Urged Government to Challenge Roe v. Wade

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/30/AR2005113000723_pf.html

By Fred Barbash
Wednesday, November 30, 2005; 5:12 PM

Supreme Court nominee Samuel A. Alito Jr. was an architect of the Reagan administration's failed 1985 attempt to have the high court consider overruling Roe v. Wade, according to a memo from the period released today.

Alito, then assistant to the solicitor general, urged his boss to use a case before the court to "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."

In the memo, Alito suggested that the government challenge Roe in an amicus , or friend-of-the-court, brief in an abortion case that itself did not challenge the 1973 decision legalizing abortion. This approach, he wrote, is better than a "frontal assault."

"It has most of the advantages of a brief devoted to the overruling of" Roe , he wrote. "It makes our position clear, does not even tacitly concede Roe 's legitimacy, and signals that we regard the question as live and open."

He added that the approach was "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," he reasoned, the decision "will not be portrayed as a stinging rebuke" to the administration.

In a previously released document, Alito had expressed pride in contributing to the Reagan administration's policies, including its view that there was no right to abortion embodied in the Constitution.

It was uncertain, however, what specific role he played in the 1985 friend-of-the-court brief in the case that was ultimately filed by then-acting solicitor general Charles Fried.

In meetings with Democratic senators after that document came out, Alito suggested that his comments in the 1985 job-application letter do not necessarily indicate how he might rule on sensitive cases.

Senators who met privately with Alito said he played down the remarks' significance. They said that he noted they are two decades old and that he stated a judge must rule according to the law, not personal sentiments.

"He said, first of all, it was different then," Sen. Dianne Feinstein (D-Calif.) told reporters after meeting with Alito last month. "He said, 'I was an advocate seeking a job, it was a political job, and that was 1985. I'm now a judge, I've been on the circuit court for 15 years, and it's very different. I'm not an advocate, I don't give heed to my personal views. What I do is interpret the law.' "

The disclosures today, however, raised concerns among some Democrats. Sen. Charles Schumer (D-N.Y.) said it "cast serious doubt on whether Judge Alito can be at all objective" about the issue of abortion. Sen. Edward M. Kennedy (D-Mass.) said Alito will need to convince the Senate that "he wil not come to the court with an agenda to roll back women's rights," the Associated Press reported.

The amicus brief submitted in Thornburgh v. American College of Obstetricians and Gynecologists did not have Alito's name on it. But it followed his recommendation.

The case stemmed from a Pennsylvania law imposing a variety of restrictions on abortion, including parental notification and requirements that physicians inform women of such matters as the possible availability of child support if they give birth instead of aborting.

An appeals court struck down most of the law and the Supreme Court granted review.

Alito was one of several officials making suggestions on what position, if any, the U.S. government should take in the case. The government had no obligation to participate.

"As Civil [the Justice Department's Civil Division] notes," Alito wrote, "no one seriously believes that the court is about to overrule Roe. But the court's decision to review" the Pennsylvania law "may be a positive sign. . . . By taking these cases, the court may be signaling an inclination to cut back," on Roe.

"What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade , Alito wrote, and in the "meantime, of mitigating its effects?"

The administration ultimately submitted the amicus brief. After running through the arguments in the rest of the case, it said this:

"We respectfully submit that . . . Roe v. Wade is extraordinarily vulnerable. It stands as a source of trouble in the law not only on its own terms, but also because it invites confusion about the sources of judicial authority and the direction of this Court's own future course. Stare decisis is a principle of stability.

"A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability, and thus is less aptly sheltered by that doctrine from criticism and abandonment."

It went on: "The textual, doctrinal and historical basis for Roe v. Wade is so far flawed. . . . a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it. . . .

"Where a judicial formulation affecting the allocation of constitutional powers has proven 'unsound in principle and unworkable in practice,' where it 'leads to inconsistent results at the same time that it disserves principles of democratic self-governance,' this Court has not hesitated to reconsider a prior decision," the brief said.

"There is no explicit textual warrant in the Constitution for a right to an abortion," it added. "It is true, of course, that words, and certainly the words of general constitutional provisions, do not interpret themselves. That being said, the further afield interpretation travels from its point of departure in the text, the greater the danger that constitutional adjudication will be like a picnic to which the framers bring the words and the judges the meaning."

The Supreme Court invalidated most of the Pennsylvania law and declined to take up the administration's challenge to Roe . Instead, the majority gave the case to Justice Harry A. Blackmun, author of the original Roe decision, who wrote: "We reaffirm the general principles laid down in Roe ."

© 2005 The Washington Post Company

[jetsetlemming]

He did his job for Reagan. He still appealed a law banning partial birth abortions.

[Simply_sexy]

Just think of the increase of deaths of young, pregnant women who will then take backwoods ways to abort their children...*shakes head*

[jetsetlemming]

I'm very disturbed that those young women would go that route in order to get rid of a baby. That's far from normal behavior, it goes against every natural instinct of parenthood. That they so desire an abortion is a big problem that needs to be addressed.

[Partridge]

That's far from normal behavior

Oh yeah? I shall assume then that you are a) a woman/girl and b) have been pregnant with an unwanted fetus at least once in your life.

Backstreet abortions have been around since, oh probably forever. There's nothing abnormal about them, except the abnormality of a society that dictates that it knows better the feelings of a woman than the women themsleves - and thus forces people into a position whereby they have no option other than to seek backstreet abortions.

[jetsetlemming]

I'm niether. It's counterproductive, biologically, to want to kill your unborn baby. Animals don't do it (though they occasionally kill born ones if they come in contact with humans or are from a different father). You aren't designed to kill children, you're designed to protect them at all costs. Its called parental instincts. Evolution has made us animals very protective of our young, for good reason, so I can only assume that the desire to kill those young, wether they are born or not, is the result of some kind of problem with the parent. We send mothers who kill already born children to jail for a long time, and are disgusted by the thought of the act.

[911=inside job]

jets, what part of the south are you from???

[jetsetlemming]

Pennsylvania. SO far south, I know. I live near Gold, actually, and we all see how stupidly conservative he is.

[jetsetlemming]

Texas mother drowns children: Andrea Yates and "family values"

By David Walsh
2 July 2001

Back to screen version (http://www.wsws.org/articles/2001/jul2001/yate-j02.shtml) | Send this link by email (http://www.wsws.org/cgi-bin/birdcast.cgi) | Email the author (https://www.wsws.org/phpform/use/comments/form1.html)

The tragic and shocking case of five young children in a Houston, Texas suburb drowned by their mother, Andrea Yates, has grabbed the attention of millions of people.

While other facts will no doubt emerge, those that have already come to light paint a disturbing picture of a certain kind of American life and mentality.

Until the terrible events of June 20, Russell and Andrea Yates and their five children were the kind of family that a Ronald Reagan might have pointed to as a model for America, or that might have been paraded on the platform at a Republican national convention: responsible, professional father; “stay-at-home mom” and home-school teacher; well-scrubbed, neatly dressed, smiling children—a tribute to “traditional family values,” as envisioned by the Christian right.

According to a statement she gave police, Yates drowned her children one after the other in the family’s bathtub. She told the authorities that she had first drowned the younger sons—John, 5, Paul, 3, Luke 2. While she was attempting to do the same to her six-month-old daughter, seven-year-old Noah walked in and asked, “What’s wrong with Mary?”

Yates confessed to chasing Noah through the house and dragging him back to the bathroom. When police arrived, Yates reportedly told them, “I just killed my kids.” The bodies of the four youngest were found still wet under a sheet on a bed. Noah was found in the bathtub.

To drown, in this methodical and implacable manner, five of one’s own children is a horrifying act, inconceivable under normal and even most abnormal circumstances. With one exception, these were not infants. The physical strength alone required, much less the emotional desperation, suggests a state something akin to “possession.” This was clearly a woman plunged into the deepest despair and madness.

Yates, 36 (she turns 37 on July 2), is currently being held in the Harris County Jail, under suicide watch, on capital murder charges. Prosecutors have not yet indicated whether they will seek the death penalty. She faces the charges in the toughest death-penalty jurisdiction in the US, and, for that matter, one of the harshest in the Western world. If Harris County were a state, its 62 executions since 1977 would put it third behind Texas and Virginia. Texas as a whole has put to death 248 people in that period.

Yates’s attorney, George Parnham, has indicated that the defense will most likely plead not guilty by reason of insanity. On June 25 Parnham described Andrea Yates as being in “a very deep psychotic state,” and observed that he had not yet been able to hold a rational conversation with his client.

What we know of Andrea Yates suggests that she was a loving and caring person—and not only in relation to her own children. She had worked as a nurse at the University of Texas M.D. Anderson Cancer Center from 1986 to 1994, one of the country’s leading cancer treatment centers. Moreover, she was the one of her parents’ five children who apparently spent the most time with her dying father as he struggled with Alzheimer’s disease.

Yates grew up in the Houston area. Her father, a high school auto shop teacher, had flown bombing missions over Germany in World War II; her mother was born in that country. Yates, a member of the National Honor Society and captain of the swim team, finished second in her high school graduating class of 1982. After finishing a two-year pre-nursing program at the University of Houston, Yates continued at the University of Texas School of Nursing in Houston, graduating in 1986. She then went to work at the M.D. Anderson Cancer Center.

Andrea married Russell Yates in 1993; they had known each other for four years and were both 28. Around the time that her first child, Noah, was born, ten months later, Yates gave up her job. Her state nursing license became inactive two years after that.

Yates had four more children over the next seven years. Following the birth of her fourth child, in June 1999, she tried to commit suicide. According to the Houston Chronicle, “the attempt took place in her parents’ southeast Houston house—and she tried to kill herself with an overdose of her father’s Alzheimer’s medication.” Despite this, Yates became pregnant again in early 2000 and gave birth to her fifth child in November. Her father died in March.

Russell Yates has said that his wife had taken four drugs for her emotional difficulties. One of them, Haldol (haloperidol) is particularly powerful, utilized, according to a mental health monograph, “in the management of manifestations of acute and chronic psychosis, including schizophrenia and manic states.” Andrea started using the drug, often prescribed for people hearing voices or thinking delusionally, after the birth of her fourth child.

At the time of the June 20 tragedy she was taking Effexor and Remeron, both anti-depressants, and had been previously taking Wellbutrin, another anti-depressant, as well as Haldol. Yates told the press that his wife had been in therapy, but was not at the time of the killings. “He said they had recently talked about her going into therapy again but she had not got around to it yet,” the Houston Chronicle reported.

Yates also explained that the birth of the couple’s fifth child and the death of his wife’s father had triggered another episode of extreme depression. She had become withdrawn and “robotic” in her movements in the three weeks before the children’s killings, he said. Her brother has told the press that Andrea put a knife to her own throat while visiting her mother’s house this spring—presumably after her father’s death—and again threatened to kill herself. Cases of women undergoing post-partum depression are relatively common; post-partum psychosis of the sort Andrea Yates apparently suffered from is extremely rare.

An unidentified official, familiar with Andrea Yates’s statement to police, told the Dallas Morning News, “She essentially said that she had realized that she was a bad mother and she felt that the children were disabled—that they were not developing normally.” Yates reportedly asserted that she had been thinking about killing them for several months.

Friends and former classmates naturally expressed great shock after news of the five children’s deaths. One ex-classmate, Kelly Young, told the press, “This is not the Andrea we knew. She was warm and caring. She would not have ever hurt anything, much less a child.” A neighbor remarked about Russell and Andrea Yates, “They just looked like your all-American family.”

Yates’s history apparently made her someone prepared to submit to her husband’s wishes on every critical question. It is in this fashion that the fate of the family seems to have become bound up with the fundamentalist Christian ideology of “family values.”

There is certainly every indication that her husband was the driving force in this regard. Andrea’s former acquaintance Kelly Young told the Chronicle, “I would never in a million years have expected her to have five children, much less children with religious names. She never made any indication that she was really interested in having many kids.”

Russell Yates has acknowledged that he was the one in the family with “deep religious feelings.” A neighbor described him as “conservative.” Relatives told the press that the couple was not affiliated with any church, but if the site of the children’s funeral was any indication, Russell Yates has some relationship with the Church of Christ. This is one of many Protestant sects, with some two million members worldwide. According to a Church of Christ web site, “Membership of the church is heaviest in the southern states of the United States, particularly Tennessee and Texas...”

The Church of Christ, according to its own web site, considers the books of the Bible “to have been divinely inspired, by which it is meant that they are infallible and authoritative.” It subscribes, like all the fundamentalist sects, to archaic and reactionary conceptions of the family and a woman’s role in society. The following view of relations between the sexes, from another Christian web site, is probably typical: “When a man and woman marry, they take certain functional positions. Men are called to be the head of the household while women are to submit to them. The husband has the final authority, and responsibility, for what goes on in the home. He listens to his wife, then makes the decisions based on Biblical wisdom.”

Friends said Andrea Yates deferred to her husband in public “on a variety of subjects.” A neighbor commented, “He didn’t want her working at all. He wanted her staying at home.” It was also his strong desire to have a certain number of children. The same neighbor said that Russell Yates spoke of having six children. “He wanted that many kids. I don’t remember that she wanted that many.” Yates apparently missed nursing on occasion, but “accepted” her role as full-time mother.

The same individual noted, “I don’t think they ever left the kid with babysitters. They were always with the kids.” Particularly Andrea, who rarely left the house.

One of the most disturbing aspects of the situation is that Andrea Yates was not simply a “stay-at-home” mother. This woman, who had obviously suffered some kind of major breakdown after the birth of her fourth child, was also “home-school” teacher to her brood of children.

Home-schooling is a social phenomenon that emerged as a serious trend during the Reagan years. Once illegal or strongly discouraged in all but three states, home schooling, thanks to organizations like the Home Schooling Legal Defense Association—an outfit run by Christian fundamentalists—and the enthusiastic support of Republican legislators, is now legal in all fifty states. The degree of state regulation varies; Texas’s regulations are all but nonexistent.

The home-school movement with religious right connections argues that children will encounter secularism, sex education and any manner of sinful ideas in a public school, or even a private school. Worries about crime and lack of discipline in public schools are no doubt genuine, but not infrequently they are laced with racism and xenophobia.

The attempt to insulate families from a troubling, “sinful” world ultimately has social roots. The lurch to the right by the political establishment and the abandonment of previous positions by liberalism have helped create a great intellectual and moral vacuum in the US. Certain layers of the population, disoriented by economic and political changes that are little understood, hope to find comfort and safety within a religious cocoon.

There are, unhappily, any number of communities in the US where a tragedy such as the one that befell the Yateses could have occurred. Clear Lake, Texas has a number of characteristics that made it more likely than most. The Clear Lake area is a relatively prosperous, largely white, largely Protestant, largely conservative suburb of Houston with a population of some 200,000 people. This is George W. Bush territory. Ultra-right Republican Congressman Tom Delay represents portions of the Clear Lake area.

The dominant institution in the region is the Lyndon B. Johnson Space Center (originally the Manned Spacecraft Center, established in 1961) operated by the National Aeronautics and Space Administration (NASA), where Russell Yates is employed. Aerospace, as the area’s chamber of commerce boasts, “is big business in Clear Lake.” Aviation is another major source of employment, as well as high-tech and petrochemical companies. A March 1997 study identified 9,100 engineers in the Clear Lake region working for 61 companies. The study also concluded that within a fifty-mile radius of the region there were more than 37,000 engineers.

Located in the midst of these technologically advanced facilities and a population with a high percentage of trained scientists and engineers are dozens of churches—some fifty in the Clear Lake Area—including many varieties of Protestant fundamentalist Bible-thumping. There can be few places in the world where there is such a mingling of scientific rationality and superstition.

Russell Yates works for NASA as an $80,000-a-year computer engineer. A piece co-written by Yates appeared in Volume 81 of “Advances in the Astronautical Sciences, Guidance and Control” in 1993. He was involved some years ago, along with a Russian scientist, in an experiment—the Shuttle/Mir Alignment Stability Experiment (SMASE—whose objective was to “explore the human factor considerations of the Mir [space station] in regard to how forces exerted by normal crew activity affect the Mir crew structure and its navigational system.” This is a man trained in science who believes that Christ turned water into wine and raised Lazarus from the dead.

The details that have been made public about the few months leading up to June 20 paint a picture of an increasingly desperate Andrea Yates, subject to psychotic episodes and severe depression, struggling to live up the ideal “Christian” lifestyle, trapped with her five young children twenty-four hours a day . And instead of seeking serious professional, psychiatric help, the couple could only call on more of the same, stultifying fundamentalist dogma.

No one has suggested that Russell Yates acted maliciously. He states that he loves his wife and supports her even now. We have every reason to believe that Andrea accepted her husband’s ideas and tried to live up to them. She no doubt wanted to be a proper “Christian wife and mother.”

It is possible that the couple hoped a fifth child would help Andrea through her mental difficulties. But the depression, despite her best efforts, persisted and deepened. Perhaps she concluded that her “bad” thoughts and behavior were contaminating her children. Psychologists have defined a mental state they term “altruistic filicide” (filicide means the murder of a child by a parent), which usually involves a mother killing her children because she believes she is doing the best thing for them, that they are literally better off dead.

[jetsetlemming]

Thats from the World Socialist Web Site, as far left as I can find, and while it tried to blaim society and religon, it still says that the act was horrific. It's just not acceptable behavior.

[911=inside job]

oh, you just belong in the south.. sorry, my bad...

[Partridge]

So your argument is that if one wants (for whatever reason) to not go through with a birth (not, as the woman in the WSWS* article did, murder her already born children), one must be a bit deficent in the mental area.

Now whether you draw a line between born and unborn (and I'm guessing you don't), most people (at least most people I know, in Catholic Ireland) do. What is the evidence for this? Well, its often argued -even by pro-lifers- that in cases of rape or incest that abortion should be an option (this is the law in Ireland - only cases of rape/incest, a threat to the womans life or where a shrink will testify that a birth may lead to suicide is abortion legal). To paraphrase Doug Stanhope (who is a libertarian), "so its ok to abort if the baby's dad is a rapist? Well, rapists are assholes, so lets extend this. Under that logic its ok for a woman to abort if the kids dad is just an asshole and not a rapist. So what about dickheads? And cocksuckers? And idiots. Where does this train of logic end?"

So I think its safe to say even those who believe that 'life begins at conception' can see a difference between an unborn child, and one thats popped out and exists independently of the mother. So therefore, to have abortion a fetus and to murder a child are two entirely different things.

But its worth looking at the concept of 'human nature'. You ask me, there's no such thing as 'human nature' - a human's nature in whatever epoch is a construct of the times and social conditions in which they exist. So, yes, many years ago when we didn't have hospitals, when child mortality rates were astronomcal, and where children were needed to work (such as work on the land when the parents became to old and weak to do so) - yes, there was an imperative to procreate - because existence depended on large families.

But such is the nature of evolution, that we evolve in the mind also. We in the West (largely) no longer live in arable societies where large families are a necessity. In fact, we live in a society where large families are often a burden more than a help (more kids = need for more money = must work longer/more jobs). So it's hardly surprising that nowadays many people don't view life as 'sacred', they view it instead as a scientific process whereby an egg is fertilized and after a period of gestation, the end product is a human being - no different to how an animal or a plant is created. And it also unsurprising that people can make informed decisions on whether or not they want to add another human being to the human race - its no longer a question of 'yes, we need children to survive', its a question of 'how would a child impact on my/our life and would it have negative or positive consequences?' - If the negative outweighs the positive, then sometimes the decision to abort is made. I don;t see any mental definiceny there, I see logic at work.

* The ICFI, as a secular-socialist organisation, is of course pro-choice.

[jetsetlemming]

I meant deficient as in crazy, not stupid. I actually believe life begins at birth. Abortion is still denying a potential human the chance at the most unique and wonderful things in the universe: human life. It's worse than killing someone who's already lived to an extent. You aren't just ending their lives, you're stopping them from happening. As bad as life can get, I'd still rather live it than be dead, and people who'd rather be dead are put into psyche wards and suicide watches. I think that Irish law sounds just fine.

[Partridge]

I meant deficient as in crazy, not stupid

So did I.

[jetsetlemming]

Oh well. I'm doing research at the moment into medical cases that would cause an abortion to be neccesary to save a woman's life.