Alito Helped Craft Reagan-Era Move To Restrict 'Roe'

By Amy Goldstein and Jo Becker
Washington Post Staff Writers
Thursday, December 1, 2005

As a Justice Department lawyer in the Reagan administration, Supreme Court nominee Samuel A. Alito Jr. helped devise a legal strategy to persuade the high court to restrict and eventually overturn Roe v. Wade , the historic decision legalizing abortion.

In a memo disclosed yesterday that he wrote in 1985 as an assistant to the solicitor general, Alito recommended that the administration submit a brief to the Supreme Court, asking it to uphold a Pennsylvania law that imposed a variety of abortion restrictions and "make clear that we disagree with Roe v. Wade ."

Alito argued in the 17-page document that stepping into the case, Thornburgh v. American College of Obstetricians and Gynecologists , would be a more effective strategy for President Ronald Reagan than a "frontal assault" on the landmark case and would not "even tacitly concede Roe 's legitimacy." Disagreeing with the administration's position, the court struck down the Pennsylvania law the following year.

Coming on a day when the Supreme Court heard oral argument in the most significant abortion rights case to reach the court in five years, the abortion memo immediately touched off intense new criticism from Democrats -- and hesitancy among some moderate Republicans -- over Alito's nomination.

The memo was among 336 pages of documents, released yesterday by the National Archives, spanning Alito's six years as a lawyer in the Reagan Justice Department and three years as U.S. attorney for New Jersey. The White House also released yesterday Alito's 64 pages of answers to questions posed by the Senate Judiciary Committee about his qualifications and views.

Alito was 35 years old and a civil-service lawyer when he wrote the abortion memo in May 1985. It was just six months before he sent a letter to then-Attorney General Edwin Meese III as part of his successful application for a higher-ranking political appointment, saying that he was "particularly proud" of his contribution to cases in which the administration argued "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

When the job-application letter became public two weeks ago, White House officials played down Alito's work on the Thornburgh case, saying that he had had a peripheral role and had not helped to write the actual brief. But the memo makes clear that, at a time when Reagan's top aides had instructed the department to work to overturn Roe , Alito furnished some of the detailed legal logic and strategy toward that goal.

A co-worker said that Alito eagerly volunteered to help prepare the brief. Albert Lauber, another assistant to the solicitor general at the time, recalls having been assigned to write the portion of the brief defending Pennsylvania's abortion law. Lauber said in an interview that Alito "just walked into my office one day and said, 'You know, this is a big assignment and do you want some help?' "

In the memo, he wrote: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime of mitigating its effects?" He then urged the department to argue that provisions in the Pennsylvania law "are eminently reasonable and legitimate and would be upheld without a moment's hesitation in other contexts."

He referred to a doctor who performs the procedure as an "abortionist" and railed against a different court decision that had struck down an ordinance that he said was "designed to preclude the mindless dumping of aborted fetuses into garbage piles." He called the decision "almost incredible."

Yesterday's disclosure added fuel to the already-inflamed debate over his candidacy for the court.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), a supporter of abortion rights, said the memo and job-application letter will be "the lead question" he will pursue when he presides over Alito's confirmation hearings, to begin on Jan. 9. Specter said in an interview that he will ask Alito "how he will factor whatever personal views he may have contrasted with the [ Roe ] case, which has stood for 32 years. . . . I want to hear what he has to say, and I want to hear how he says it."

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