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Memo Cited 'Abortion Tragedy'

Roberts's memo about the memorial service followed a three-year court battle over whether to release to antiabortion activists about 16,500 aborted fetuses found in a metal storage container at the home of the director of a California pathology lab. The Supreme Court in March 1985 had let stand a lower court's ruling against their release on grounds that it would violate the separation of church and state.

Even without the fetuses, the activists persisted in holding a service and sought a telegram from Reagan that could be read during that ceremony. Roberts said he had no objection to the draft telegram of support.

Bruce Fein, who worked closely with Roberts at the Justice Department, said that he did not know Roberts's personal feelings about abortion. "I know he thought Roe was totally ill-reasoned and extra-constitutional. Everyone in the department did -- we talked about it," he said. Whether Roberts would vote to overturn Roe v. Wade if confirmed to the Supreme Court "is another matter," Fein said, that depends on Roberts's views on how much weight should be given to court precedent.

Laurence H. Tribe, a professor of constitutional law at Harvard University, noted that, during the 1980s, many liberal and conservative scholars alike believed that Roe v. Wade was a poorly reasoned decision -- "even those, like myself, who defended the outcome."

On another heated matter of the day, Roberts weighed in on the issue of whether women should be given equal pay for work comparable to that performed by men. In a Feb. 20, 1984, memo, Roberts took sharp issue with a request by three female Republican lawmakers -- then-Rep. Olympia J. Snowe (Maine), then-Rep. Claudine Schneider (R.I.) and Rep. Nancy L. Johnson (Conn.). They had urged the administration to accept a U.S. District Court decision requiring such pay in the state of Washington and wrote a letter to the White House saying "support for pay equity . . is not a partisan issue."

Roberts pulled no punches in his response. "I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept" as equal pay for comparable worth, he wrote. The pay gap can be explained by seniority of male workers and the fact that women leave the workforce for extended periods, he added.

Comparing the lawmakers' letter to Marxist dogma, Roberts said "their slogan may as well be 'From each according to his ability, to each according to her gender.' " In a separate memo to Fielding on Feb. 3, 1984, Roberts wrote, "It is difficult to exaggerate the perniciousness of the 'comparable worth' theory. It mandates nothing less than central planning of the economy by judges."

A three-judge federal appeals court panel later reversed the decision, but the state subsequently settled the lawsuit by providing $100 million in pay adjustments for 35,000 employees. Snowe, now a GOP senator, is a member of a bipartisan group of senators who will play a key role if the vote on Roberts's confirmation is close. Yesterday, she issued a statement that said, "Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination and . . . I will continue to carefully and rigorously evaluate his views and 26-year record on such critical matters."

In another memo, Roberts indicated that he opposed the "exclusionary rule," which generally bars the use in court of evidence obtained through illegal searches or other unlawful means.

Noting that a recent federal study had concluded 29 percent of felony drug arrests in Los Angeles were dismissed in 1981 because of improper seizures of evidence, Roberts wrote that "this study should be highly useful in the campaign to amend or abolish the exclusionary rule."

In August 1985, Roberts also opined on whether federal government records should be made available to members of Congress before nomination hearings. His former Justice Department colleague, William Bradford Reynolds, had just been denied promotion to assistant attorney general, partly because Congress had obtained provocative memos Reynolds had signed.

"I would hope that with most nominations we would be in a better position to resist committee demands," Roberts said. He also described the Presidential Records Act -- which forces disclosure of White House records after the passage of 12 years -- as having a "pernicious effect."

Staff writer R. Jeffrey Smith contributed to this report.

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