Alito's role in trying to overturn Roe v. Wade detailed in papers

WASHINGTON — As a Justice Department lawyer in the Reagan administration, Supreme Court nominee Samuel Alito 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 Wednesday 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 that stepping into the case, Thornburgh v. American College of Obstetricians and Gynecologists, would be a more effective strategy for President 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 law the following year.

The memo was among 336 pages of documents released Wednesday 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 on Wednesday also released 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 Ed Meese 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 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.

In the memo, Alito 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 Justice 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."

Wednesday'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 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."

Sen. Edward Kennedy, D-Mass., said the newly released documents "appear to be a clear sign that he passes the right's litmus test with flying colors."

White House officials and some of Alito's former colleagues countered that he was merely a staff attorney helping to carry out a directive of a president who wanted Roe overturned.

White House spokesman Steve Schmidt said that, during the past 15 years that Alito has been a federal appeals court judge, he has voted both for and against restrictions on abortion.

"Any attempt by opponents of his nomination to suggest that the memo signals how he would rule as a Supreme Court justice on any issue is just silly," Schmidt said.