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A coauthor says Alito was instrumental in Roe v. Wade brief

WASHINGTON -- Samuel A. Alito Jr. played a major role in constructing the Reagan administration's 1985 brief that argued for overturning the Supreme Court decision legalizing abortion, according to one of the coauthors.

Albert Lauber, who served with Alito in the solicitor general's office, said Alito had been instrumental in drafting arguments for why the court should uphold laws in Pennsylvania and Illinois, which imposed numerous restrictions on abortions.

Lauber said the portion of the brief attacking Roe v. Wade, the Supreme Court decision granting abortion rights, had been written mostly by the solicitor general himself, Charles Fried.

''Sam did make a major contribution to a brief which did argue, among other things, that Roe should be overruled," Lauber said. ''He just didn't write that specific part of the argument."

Fried said yesterday that it made sense that Alito worked with Lauber on the brief, although he did not initially recall Alito's involvement. Fried stressed that he himself had written the portion of the brief that had specifically argued for overturning Roe.

Alito's involvement in the case has become a topic of significant interest during his confirmation process, because he wrote in a 1985 job application that he was ''particularly proud of my contribution" in a Supreme Court case ''that the Constitution does not protect a right to an abortion."

While Alito did not specify a case, his former colleagues in the solicitor general's office said he was referring to the 1985 case, in which Alito volunteered to help write the brief.

''I did most of the actual drafting. He did the research, the thinking, as well as the legal research and analysis," said Lauber, a Washington lawyer. ''Sam said, 'I know this is not in your area.' He kind of volunteered to be helpful."

The case revolved around laws that imposed numerous restrictions on abortion, including requirements that women be told about the physical and mental risks of abortion and about the ''physiological characteristics of an unborn child."

A woman seeking an abortion was also required to provide a variety of personal details.

Lauber recalled that Alito came up with an argument in the case seeking to justify a regulation that required the ''humane and sanitary" disposal of a fetus. Some clinic officials feared that the rule would require that fetuses be buried.

Alito found that US law already required the ''humane" disposal of wild horses, and so such a requirement would not be unreasonable for aborted fetuses.

''Sam did a really clever job and found all of these analogies governing other laws," Lauber said.

''No one would argue that a requirement that the sanitary disposal of wild horses would be unconstitutional, so why should it be different for fetal remains?" Lauber added.

The Supreme Court struck down some of the abortion restrictions, saying in the 5-4 decision, ''the States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies."

But the case is also remembered for the Reagan administration's brief arguing Roe should be overturned.

''There is no explicit textual warrant in the Constitution for a right to an abortion," the brief said. It said the doctrine of precedent should not prevent overturning Roe because ''a decision as flawed as we believe Roe v. Wade to be becomes a focus of instability, and thus is less aptly sheltered by that doctrine."

The Supreme Court rejected those arguments, saying, in part, ''We reaffirm the general principles laid down in Roe."

Alito has told some senators that he has respect for precedent, but he has not said if he would vote to overturn Roe.

One of the key questions about Alito among senators is now whether his statement that ''the Constitution does not protect a right to an abortion" means that he would try to overturn Roe, or whether his statements about respecting precedent mean that he would leave it intact.

Lauber said his impression of Alito from their work together in the Reagan administration is that ''Sam's main agenda was that the law had become really messed up. He thought all the precedents were getting messed up because of legislative encroachment."

Fried, while saying ''I don't think anybody in their right mind ever says that no precedent ought to be overruled," predicted that Alito would not vote to overturn Roe v. Wade because of respect for precedent.

Fried said he was didn't realize that Alito was a strong conservative, as Alito portrayed himself in his 1985 job application.

''I didn't know that about him, and he didn't tell me that," Fried said. ''I don't remember him as being particularly political. There is nothing strident about him."

Alito did not sign the Reagan administration's friend-of-the-court brief in the Pennsylvania case, Thornburgh v. American College of Obstetricians and Gynecologists.

Lauber said yesterday that Alito did not sign the brief because he had not been originally assigned the case.

Michael Kranish can be reached at

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