Alito memo set goal to reverse Roe v. Wade

WASHINGTON -- Samuel A. Alito Jr., the Supreme Court nominee, wrote a memo in 1985 to his superior in the Reagan administration saying that the Justice Department should set a goal of overturning the Roe v. Wade decision legalizing abortion, and in the meantime should weaken the law by supporting state restrictions.

''We should make clear that we disagree with Roe v. Wade and would welcome the opportunity to [present arguments on] the issue of whether, and if so to what extent, that decision should be overruled," Alito wrote in a memo to the solicitor general at the time, Charles Fried. The National Archives released the memo yesterday.

Abortion rights activists called the memo definitive evidence that Alito, if confirmed, would seek to limit abortion rights. But Alito's supporters said that he was merely outlining a strategy for the Reagan administration and that the memo does not necessarily reflect how he would rule as a judge.

The memo, which covered 17 pages, repeatedly expressed distaste for abortion and abortion rights. Alito also raised concerns about the credibility of doctors who perform large numbers of abortions, and outlined a wide-ranging strategy aimed at transforming the law.

While ''no one seriously believes that the court is about to overrule Roe v. Wade," Alito wrote, the high court -- by agreeing to hear cases involving state-imposed limits on abortion -- might be signaling that it was ready to curtail the procedure's frequency.

''What can be made of this opportunity to advance the goals of bringing about the eventual overturning of Roe v. Wade and, in the meantime, of mitigating its effects?" Alito said. The remainder of the document spells out ways in which the Justice Department could defend various restrictions on abortion.

Former colleagues of Alito said he was expressing a common view within the Reagan administration, which was strongly opposed to the Roe v. Wade decision.

''He was by no means suggesting the formulation of a policy here -- he was simply acknowledging and proceeding from a common premise from within the Justice Department" that Roe v. Wade was a flawed decision, said Chuck Cooper, a former assistant attorney general who worked with Alito in the Justice Department.

Wendy Long, chief counsel for the conservative Judicial Confirmation Network and an Alito supporter, said she believes Alito would be restrained as a jurist by a respect for legal precedent. Even if Alito personally opposes the legal reasoning or the impact of Roe v. Wade, he could still vote to uphold abortion rights, she said.

''The memo is more about inside baseball and tactics" rather than Alito's own views, she said.

Alito himself, answering a Senate Judiciary Committee questionnaire released by the panel yesterday, affirmed a view of judicial restraint. ''Judges must . . . respect the judgments reached by their predecessors, and they must be sensibly cautious about the scope of their decisions," Alito wrote.

But abortion rights advocates said the memo exposes Alito as the ''chief architect" of a strategy to whittle away at Roe v. Wade until the law could be overturned by a more conservative court.

''The language and strategic thinking in the newly revealed memo is stunning," said Senator Charles E. Schumer, Democrat of New York. ''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."

Nancy Keenan, president of NARAL Pro-Choice America, said the papers show Alito as ''the puppet master of the Reagan administration's antichoice legal strategy."

''I think it really does show his personal and legal philosophy," she said.

Alito is expected to be closely questioned on a range of social issues when he appears before the Senate Judiciary Committee next month; the panel's chairman, Pennsylvania Republican Senator Arlen Specter, alerted Alito in a letter yesterday that he planned to ask him about affirmative action.

But Alito's views on abortion are headlining the debate, and Specter, who is a supporter of Roe v. Wade, said yesterday he, too, is eager to discern Alito's views on abortion.

''I will begin the questioning as to his views on a woman's right to choose," Specter said.

Abortion rights groups are already pressuring senators to oppose the man they believe could be a deciding vote in whether to keep Roe v. Wade. If the decision were reversed, it would leave the question to individual states, some of which have moved to restrict the procedure by requiring 24-hour waiting periods, parental notification for cases involving minors, and ''informed consent," the requirement that a doctor tell a patient of the alternatives to abortion as well as the physical risks of the procedure.

Several moderate Republicans have raised questions about Alito's perceived hostility to abortion rights. Senator Lincoln D. Chafee, Republican of Rhode Island, said yesterday that he would oppose a Supreme Court nominee who would overturn Roe v. Wade, though he acknowledged that senators are unlikely to learn for certain how Alito would vote.

''It's an issue that I care deeply about, and I know how high the emotions are," Chafee said in an interview in East Greenwich, R.I. ''I think that to pull this country apart on this issue at this time --it's not good for our country to wade into this debate right now, when the country is so polarized, with the high emotions associated with it."

In previously disclosed papers, Alito wrote in a 1985 job application that he was ''particularly proud" of his work on cases in which the government argued against racial and ethnic quotas, and against the notion that abortion is a constitutional right. After several senators expressed concern, Alito distanced himself from the remarks, saying they were made in pursuit of a ''political job."

The memo released yesterday, however, reignited worries among senators who support abortion rights. In it, Alito wrote passionately about abortion, which he called a ''moral choice, because the woman contemplating a first-trimester abortion is given absolute and nonreviewable authority over the future of the fetus."

Alito also questioned if doctors could be trusted to tell patients of medical and other consequences. ''Many physicians, including those operating high-volume abortion clinics, have a financial interest in encouraging women to have abortions," Alito wrote.

Senators Edward M. Kennedy of Massachusetts and Patrick J. Leahy of Vermont, both Democrats, said the memo underscored a need to see more of Alito's writings. Democrats have sought Alito's papers from his days in the solicitor general's office; the White House has said they are shielded by attorney-client privilege.

The memo released yesterday was among papers of Cooper, Alito's former superior, which the National Archives had received.

''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 Leahy, the ranking Democrat on the Senate Judiciary Committee. ''We now see why this administration has resisted so strenuously to the release of these sorts of memos."

Rick Klein of the Globe staff contributed to this report.