WASHINGTON—Providing fresh ammunition in the escalating fight over Supreme Court nominee Samuel Alito Jr., documents released Wednesday show that as a young lawyer in the Reagan administration he recommended a bold, but stealthy legal strategy to neutralize and eventually overturn Roe v. Wade.
The 1985 memo, written while Alito worked in the solicitor general's office, was written as the Reagan administration was preparing to launch its first direct attack on the landmark 1973 decision, which established a woman's right to an abortion.
Alito wrote that while "no one" seriously believed the Supreme Court was about to eliminate abortion rights, two pending cases on abortion restrictions offered the Reagan administration a chance to chip away at Roe v. Wade. He suggested having the government intervene in the cases to support the restrictions, while avoiding a "frontal attack" on Roe v. Wade itself.
"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?" Alito mused in the memo.
Alito's words are sure to turn up the volume in the debate over his nomination to the high court. The memo is an unequivocal endorsement of the effort to overturn Roe v. Wade. It's also a very early articulation of the multi-pronged strategy employed by anti-abortion activists for the past two decades: oppose abortion rights generally while working specifically to narrow their scope.
The newly released memo also appears to undercut Alito's earlier efforts to minimize the importance of anti-abortion statements he made in a job application that same year. Alito told Democratic senators last month that his thoughts in the application were simply a sales pitch by a young lawyer trying to climb the ladder in a conservative administration.
Also on Wednesday, the White House released Alito's responses to a Senate Judiciary Committee questionnaire in which he emphasized his belief that federal judges ought to decide cases with restraint and respect for precedent.
"Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result," Alito wrote.
Alito's supporters were quick to downplay the abortion memo's significance, saying it was dated and didn't say much about how he would act as a judge.
Former Solicitor General Charles Fried, Alito's boss at the time and the person who eventually decided to tackle Roe head on in the case, said the landscape on abortion looked different in 1985.
"It was a very different situation in 1985 to 2005," Fried said. "It's over, it's settled. The opinion has been clearly reaffirmed."
Alito supporters also note that Justice Sandra Day O'Connor, whom Alito would replace, always supported some restrictions on abortion. In 1989 and 1992, she was instrumental in cases that opened the door to wider state regulation, but essentially reaffirmed Roe.
Charles Cooper, who worked with Alito in 1985, said Alito's memo simply reflected the administration's belief that "Roe v. Wade allows for reasonable regulation of abortion by the states."
But Democratic senators pounced on the memo's language as a sign that Alito has a closed mind about abortion.
"These latest revelations cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman's right to choose," said Sen. Charles Schumer, D-N.Y., a member of the judiciary committee that will hold Alito's confirmation hearings in January.
Judiciary Committee Chairman Arlen Specter, R-Pa., said the memo reinforced the need to question Alito closely during the hearings.
"As I say, that will be a central line of questioning," Specter said. "In fact, that's where I will begin the questioning as to his views on a woman's right to choose."
Alito wrote the memo urging the administration to get involved in two Supreme Court cases that challenged the constitutionality of state laws placing a range of restrictions on doctors who performed abortions. Many required physicians to tell women of the health dangers of abortion and the options available to them.
The Illinois case was dismissed on a procedural basis.
The administration wound up intervening in the Pennsylvania case, Thornburgh v. American College of Obstetricians and Gynecologists, which became an important touchstone in the high court's abortion rulings.
Alito trumpeted his indirect approach, which wouldn't have urged a re-examination of Roe v. Wade, as giving the administration cover in its efforts to roll back abortion rights.
"When the Court hands down its decision and Roe is not overruled, the decision will not be portrayed as a stinging rebuke" to the administration, Alito wrote. "We also will not forfeit the opportunity to address—and we will not prod the Court into summarily rejecting—the important secondary arguments" promoting abortion restrictions.
Unlike his many court rulings, Alito's memo dripped with emotion and frustration over the state of abortion laws at the time. He described courts as adopting a "suffocating" approach to reviewing abortion restrictions and relying on "flimsy" and "unsupported" factual assertions to do so. He said courts refused to allow any "breathing room" for state regulation of abortion.
In the memo, Alito said the Pennsylvania restrictions were sensible.
Informing a patient about all of her options and the attendant medical risks is "relevant, factual and non-inflammatory information," Alito wrote. "A state should have the right to require that a woman contemplating abortion be given information regarding the procedure, the fetus, the effect of the procedure on her and the fetus, and the alternatives to abortion."
In the end, Fried, the solicitor general, ignored much of Alito's advice and attacked Roe v. Wade head on in the administration's brief in Thornburgh.
The high court wasn't persuaded, however, and by a 5-4 margin struck down most of the Pennsylvania provisions while stating simply that Roe v. Wade would remain intact.
(c) 2005, Knight Ridder/Tribune Information Services.
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