Memo Cited 'Abortion Tragedy'

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By Amy Goldstein and Jo Becker
Washington Post Staff Writers
Tuesday, August 16, 2005

As a senior legal adviser to President Reagan, John G. Roberts Jr. concluded that a controversial memorial service for aborted fetuses, organized by a group of California doctors who opposed Roe v. Wade , was "an entirely appropriate means of calling attention to the abortion tragedy."

The words of the Supreme Court nominee, contained in a 1985 memo in which he approved a telegram from Reagan supporting the service, provide the clearest insight to date into Roberts's personal views on abortion at a time when both proponents and opponents of Roe have a keen interest in whether he would tip the court's balance on one of the nation's most volatile social issues.

Legal experts on the right and the left cautioned against interpreting Roberts's writing from that era as a certain predictor of how he would vote on abortion cases that might come before him today. Still, the memo, among 5,393 government documents released yesterday from the four years Roberts worked as associate White House counsel, is consistent with subtler clues to Roberts's stance on the landmark abortion case that have been emerging since his nomination by President Bush last month.

In 1981, while working at the Justice Department, Roberts had referred to the legal underpinnings of a woman's right to an abortion as the "so-called 'right to privacy.' " Later, as a deputy solicitor general in President George H.W. Bush's administration, Roberts would co-author an administration Supreme Court brief arguing that Roe v. Wade was wrongly decided and should be overturned.

The memo about the Los Angeles service for aborted fetuses is part of a pattern in the documents issued yesterday by the Ronald Reagan Presidential Library: During his tenure from 1982 to 1986 in the Reagan White House, Roberts staked out conservative positions on a broader array of issues than has previously been known.

He called a federal court decision that sought to guarantee women equal pay to men "a radical redistributive concept." He wrote that a Supreme Court case prohibiting silent prayer in public school "seems indefensible."

And he once advised two Methodist ministers how to skirt the U.S. Flag Code in order to display religious flags and insignia above the American flag, writing, "If some church gives its flag the place of prominence over the Stars and Stripes, the pastor is hardly going to be sent up the river."

Ed Whelan, president of the conservative Ethics and Public Policy Center, said of the new files that "those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents."

The memos, letters and other papers were released in response to a request from Senate Democrats, who are eager to glean the nominee's thinking before the Senate Judiciary Committee begins confirmation hearings on Sept. 6. Many contain the advice that Roberts offered to Reagan and to Roberts's immediate boss, White House counsel Fred F. Fielding. Democrats are particularly interested in his writing from earlier in his career, because Roberts has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit for just two years.

But 478 documents were withheld, largely on grounds of privacy, according to Reagan Library officials. A White House spokesman, Steve Schmidt, said those decisions were made by the library's staff, not by White House aides who traveled to the library, in Simi Valley, Calif., to review the files last month before they were made public.

Among the memos that are absent is the only one written by Roberts in a box of documents about the Bob Jones University case, in which the Supreme Court ruled that it was legal to revoke the school's tax-exempt status because it prohibited interracial dating; a memo he wrote on presidential pardons; and 20 of the 27 pages in a box of documents on the Equal Employment Opportunity Commission. At least one Roberts document -- a copy of handwritten notes from a White House daily staff meeting -- was withheld on grounds of presidential executive privilege.

In addition, the National Archives' chief archivist, Allen Weinstein, issued a statement saying that the library "has been unable to locate" one folder from Roberts's files, containing correspondence relating to affirmative action, since it was reviewed by administration officials in mid-July. Weinstein said library staff members appeared to have misplaced it but believed they were able to reconstruct its contents.


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