washingtonpost.com
Memo Cited 'Abortion Tragedy'
Roberts Backed Service for Fetuses

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.

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.

© 2005 The Washington Post Company