Alito Pushed For Abortion Limits

Judge Samuel Alito, left, President Bush's nominee to join the Supreme Court, arrives for a meeting with Sen. Dianne Feinstein, D-Calif., in her Capitol Hill office, early Tuesday, Nov. 15, 2005 in Washington.
As a Reagan administration lawyer in 1985, Samuel Alito made clear his hope that the Supreme Court would one day overturn a landmark ruling that established abortion rights.

But Alito, now a Supreme Court nominee, argued against an all-out assault on the Roe v. Wade ruling, fearing such an assault would fail. Instead, he recommended a policy of "mitigating its effects" by trying to persuade justices to accept state regulations on abortions.

While working as an assistant to the solicitor general, Alito called for the office to help defend provisions of the Pennsylvania Abortion Control Act, some of which had been overturned by a panel of the 3rd U.S. Circuit Court of Appeals in the case American College of Obstetricians and Gynecologists v. Thornburgh.

Alito wrote in the memo, which was released by the National Archives on Wednesday, that "no one seriously believes that the court is about to overrule Roe v. Wade. But the court's decision to review these cases nevertheless may be a positive sign."

He added: "By taking these cases, the court may be signaling an inclination to cut back. 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 was nominated by President Bush on Oct. 31 as the replacement for retiring Justice Sandra Day O'Connor, who has been a deciding vote on abortion on the Supreme Court. Alito's opponents fear that he and recently confirmed Chief Justice John Roberts would swing the Supreme Court to the right and lead to overturning Roe v. Wade.

Senators say Alito has expressed "great respect" for the precedent established by the landmark abortion decision but didn't commit to upholding it in his two weeks of private meetings with them. Alito also has distanced himself from his earlier comments that there was no constitutional right to abortion, with senators saying that he has told them that now "I don't give heed to my personal views, what I do is interpret the law."

But in 1985, Alito urged that the Justice Department attack the issue by working for limitations on abortion.

"I find this approach preferable to a frontal assault on Roe v. Wade," Alito wrote. "It has most of the advantages of a brief devoted to overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open. At the same time, it is free of many of the disadvantages that would accompany a major effort to overturn Roe."

For example, if the court did not overturn Roe, "the decision would not be portrayed as a stinging rebuke," Alito said.

CBS News legal analyst Andrew Cohen says the memo is "a rare and invaluable look at how one future candidate for the court disagreed with Supreme Court precedent and how he schemed either to get around that precedent or convince the court to do away with it altogether.

"It certainly won't derail the Alito nomination but it won't make it easier, either," said Cohen.

Sen. Charles Schumer, D-N.Y. and a member of the Senate Judiciary Committee, called the memo "stunning."

"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," Schumer said.

White House spokesman Steve Schmidt called Schumer's criticism "unfair."

"Judge Alito should be evaluated on his 15 years of jurisprudence as a federal judge where he has authored hundreds of opinions," Schmidt said. "On some of those cases, he has upheld abortion rights. In other cases he has not. To leap to conclusions and try to infer future decisions from 20-year-old memos borders on the silly."