Alito Sketched Strategy to Overturn Roe in ’85

Times Staff Writers

As a Reagan administration lawyer, Supreme Court nominee Samuel A. Alito Jr. argued forcefully against the high court’s landmark decision legalizing abortion and laid out a strategy to overturn Roe vs. Wade.

In a lengthy 1985 memo, Alito -- then an assistant solicitor general -- urged the Justice Department to defend states seeking to put restrictions on the procedure, saying that the Supreme Court’s rulings did not mean that abortion is “unregulable.” In particular, he wrote, states should have the right to order doctors to inform patients about potential medical risks and alternatives to the procedure.

“If abortion is a woman’s choice, as the court has held, then surely the choice should be informed,” Alito wrote.

Such state regulations, he continued, are “preferable to a frontal assault on Roe v. Wade” and could eventually lead the court to reconsider Roe itself.


Alito’s critics, including abortion rights advocates, swiftly denounced the memo, saying it showed that the nominee helped lay the groundwork for an attack on abortion rights that continued to this day. Alito’s defenders dismissed the import of the memo, saying he was a staff lawyer for a president who was an avowed opponent of abortion.

“The memo shows that Samuel Alito worked in the boiler room as one of the chief engineers of a multi-tiered strategy to reverse Roe v. Wade,” said Nan Aron, president of the liberal Alliance for Justice advocacy group.

“This memo reflects tactical litigation advice that Judge Alito, writing 20 years ago as a deputy lawyer in the office of the solicitor general, gave to his client, the pro-life administration of President Ronald Reagan,” said Wendy E. Long, counsel for the conservative Judicial Confirmation Network, another advocacy group.

The 17-page memo was among more than 300 pages of documents relating to Alito that were released Wednesday by the National Archives under a request from the Senate, which is to vote on his nomination in January.


The White House has refused to release documents from Alito’s service in the solicitor general’s office, arguing that they are privileged. However, the Roe memo and a second on use of unnecessary force by police were among documents sent to the archives in 1999 on which the Clinton administration had waived privilege; the current White House had no authority to restrict their release.

“Internal [solicitor general] office documents are privileged, and you can see why if you look at the ones that are in here,” a Justice official said, speaking on the condition of anonymity. “It can be detrimental to the government’s ongoing ability to litigate certain issues.”

In the second memo, written in May 1984, Alito criticized a federal appellate ruling that police officers in Memphis, Tenn., could be sued for using unnecessary force for shooting a 15-year-old burglary suspect who was attempting to flee a crime scene.

Alito wrote that judges should defer to local authorities’ judgment. “All such rules are based upon difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution,” he said.


Also Wednesday, Alito sent the Senate Judiciary Committee more than 200 pages responding to a questionnaire on his qualifications and legal experience.

Among all the documents released, the Roe memo stood out for its strong views and language. It also appeared to offer a glimpse of Alito’s personal views on one of the nation’s most divisive social issues.

Alito critics noted that in a previously released application for a subsequent job in the Reagan administration, the nominee said he was “particularly proud” of his work in the solicitor general’s office arguing “that the Constitution does not protect a right to an abortion.”

Bush administration officials insisted that in his Roe memo, Alito was only offering legal advice to his client, and that the memo offered no clues about how he might rule on abortion cases as a judge. They noted that in four abortion-related cases he heard as a federal judge, Alito ruled once for the antiabortion side and three times for the side advocating abortion rights.


Steve Schmidt, who is heading confirmation efforts and strategy for the White House, said that even if the memo reflected Alito’s personal opinion, such views were “beside the point.”

“Are opponents of abortion saying that there is a litmus test, that anyone who holds a personal opinion is precluded from serving on the Supreme Court?” Schmidt asked.

But the top Democrat on the Senate Judiciary Committee said the memo showed why senators wanted access to all documents Alito penned for the Reagan administration.

“This new information heightens concern about Judge Alito’s views regarding ‘settled law’ and his eagerness to engage in activism to change law with which he disagrees,” said Sen. Patrick J. Leahy (D-Vt.). “We now see why this administration has resisted so strenuously to the release of these sorts of memos.”


In his questionnaire, Alito provided new details about his financial holdings, including that he owns $161,000 of Exxon Mobil Corp. stock. Altogether, Alito estimated his net worth at $2.1 million, of which $870,000 is in real estate, $789,000 in stocks and mutual funds, $244,000 in cash and $60,000 in federal Series EE bonds.

According to previous financial disclosures reported last month by the Associated Press, the Exxon Mobil stock was a bequest from a family friend.

Other disclosures included:

* Alito was first interviewed by Bush administration officials in June 2001 for a possible nomination to the Supreme Court. He was interviewed again in May of this year by Vice President Dick Cheney, Atty. Gen. Alberto R. Gonzales and other top officials. He met with President Bush on July 15, shortly before Bush nominated John G. Roberts Jr. to the Supreme Court.


* Alito was sued in 2003 after a traffic accident involving his wife and another driver. The suit was settled out of court, and the case was dismissed in August 2004.

* Alito acknowledged that he had previously claimed membership in a group called Concerned Alumni of Princeton, which the campus newspaper recently described as “a far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the university.” In the questionnaire, Alito wrote: “I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group.”