Decades Ago, Alito Laid Out Methodical Strategy to Eventually Overrule Roe

Years later, when those documents were disclosed during his Supreme Court confirmation, he assured senators that while that statement reflected his views in 1985, he would approach abortion cases with an open mind as a justice, with due respect for precedent and with no ideological agenda.
“When someone becomes a judge,” he said, “you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.”
Before Justice Alito joined the Supreme Court, he served on the U.S. Court of Appeals for the Third Circuit. As an appellate judge, he lacked the power to overrule Roe. But he sometimes seemed to look for ways to whittle away at it in cases touching on abortion, dovetailing with his formative advice during the Reagan administration.
The most notable was Planned Parenthood v. Casey, the case in which the Supreme Court reaffirmed the central holding of Roe but permitted states to impose more gaming restrictions in the first trimester. It involved a challenge to a Pennsylvania law imposing requirements before an abortion, including a waiting period, parental consent for minors and notifying a woman’s husband.
Before it reached the high court, the case came before a Third Circuit panel that included Judge Alito. The other two judges on the panel voted to uphold most of the law, but they struck down the provision mandating spousal notification. Judge Alito wrote separately to dissent from that part, saying it should stand, too.
That requirement, he argued, did not impose an “undue burden” on abortion access, so it was enough that “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus.” Nor, he wrote, should judges second-guess the state legislature’s decisions on the adequacy of several exceptions it included for certain cases.