Memos Show John Roberts Praising Criticism of Abortion Decision
by Steven Ertelt
LifeNews.com Editor
August 2, 2005

Washington, DC (LifeNews.com) -- New sets of memos on Supreme Court nominee John
Roberts find the former Reagan administration official praising a former Attorney
General's speech criticizing the right to privacy, the fictitious right the high
court invented to form the basis of the Roe v. Wade decision legalizing abortion.
The National Archives posted new documents about Roberts on its web site and some
of them deal with his tenure as special assistant to Attorney General William
French Smith in 1981.

In a December 1981 memo to Smith, Roberts praised a speech given by former
Harvard law dean Erwin Griswold that Roberts wrote was consistent with Smith's
views. The speech criticized the Roe v. Wade decision.

Griswold "devotes a section to the so-called 'right to privacy,' arguing as we
have that such an amorphous right is not to be found in the Constitution. He
specifically criticizes Roe v. Wade," Roberts wrote.

"You were quite right that I would find a 'measure of resonance' in your
lecture," Roberts later wrote in a letter to Griswold on Smith's behalf.

Roberts, writing for Smith, praised Griswold for sounding "some of the themes I
have been addressing recently'' about courts "restricting themselves to the
proper judicial function.''

Another document the National Archives released is a "Draft Article on Judicial
Restraint'' stating that courts should not "discern such an abstraction in the
Constitution'' as the "right to privacy.''

Roberts name does not appear on the draft, but a letter is included to Roberts
from Bruce Fein, an associate deputy attorney general, suggesting an addition to
"your draft article."

The Senate Judiciary Committee is slated to begin hearings on Roberts on
September 6 and abortion is expected to be a controversial issue. They will ask
whether the various memos Roberts has written about abortion reflect his own
views or those of the Reagan and Bush administrations, for whom he worked.

Washington , DC (LifeNews.com) -- John Roberts' view on abortion is drawing all of the attention as the nation watches the battle unfold over President Bush's nominee to the Supreme Court. However, with the death of Terri Schiavo, issues like assisted suicide and euthanasia are more prevalent and observers say a Roberts comment on the topic provides some interesting insight.

In a 1997 case, the Supreme Court unanimously ruled that no right to assisted suicide exists, but states could decide whether to allow assisted suicides to take place.

In the cases, Washington v. Glucksburg and Vacco v. Quill, the court upheld laws against assisted suicide in Washington and New York .

In an interview that year with the PBS news program "The NewsHour with Jim Lehrer," Roberts commented on the rulings.

"I think it's important not to have too narrow a view of protecting personal rights," he said.

"The right that was protected in the assisted-suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life, and not to have the court interfering in those policy decisions," Roberts explained. "That's an important right."

Observers say the remarks point to Roberts' attitude of judicial restraint -- of not allowing courts to overturn the will of the people as handed down through legislation approved by the state legislature.

Pro-life groups applaud that kind of view, which would typically favor upholding pro-life laws approved by Congress and state lawmakers.

Roberts' thoughts on the issue of assisted suicide could foretell how he may rule on a case the Supreme Court will hear in its next term, starting in October.

The state of Oregon is appealing a Bush administration decision disallowing the use of federally controlled drugs in assisted suicides there. The Bush administration ruled that the use of drugs to kill patients does not constitute a legitimate medical purpose. It says the Controlled Substances Act, passed by Congress, allows it to prohibit using such narcotics.

Douglas Kmiec, a constitutional law professor and former Justice Department office under President Reagan, told Knight Ridder news service, "I think the quote highlights a general theme of his, which is to observe the separation of powers and the structural aspects of the Constitution with special care."

"And I think it's important to point out that this approach is not a formula for a conservative court or a liberal court. It's just a formula for a faithfully democratic court," Kmiec added.

Temple University law professor Craig Green said Roberts' quote may not have much instructive value. While it shows Roberts favors upholding state laws against assisted suicide, it doesn't speak to the upcoming Supreme Court debate involving a state law allowing the practice and federal efforts to curtail it.

"His quote has very careful phrasing that doesn't commit him to any political position, and I tend to think there's a whole slice of Washington life that endeavors to do that," Green told Knight Ridder.

Here’s an interesting statement from Friday’s Philadelphia Gay News:

“Because Roberts has been a federal judge for only three years, there was only a short record of court opinions on which to discern his approach to key issues. But President Bush said he would "strictly apply the Constitution and laws, not legislate from the bench," which suggests Roberts would not find protections for gays in the Constitution”

http://www.epgn.com/news/court.htm

I believe one clarification is needed – there had been a rumor that Judge John Roberts had been involved in defending the Playboy Channel. I made an inquiry to the AFA Center for Law and Policy and below is Brian Fahling’s response to my inquiry:

Diane,

Roberts firm has more than 1,000 lawyers and probably 20 times that many clients; I doubt he embraced the cause of every client the other lawyers in his firm happened to represent. Base on his record, I think he is an excellent choice—time will tell.

Brian

Stand on Abortion

A clarification on Judge Roberts’ statements on Roe v. Wade from the American Family Association Center for Law and Policy:

Brian Fahling, senior trial attorney for the American Family Association Center for Law & Policy, believes Judge Roberts is an excellent choice: “He was an extraordinary lawyer, and I am persuaded he will be an exceptional justice. President Bush, in my opinion, has kept his promise to nominate an individual who will interpret, not rewrite the Constitution.”

Fahling noted that as deputy solicitor in the Reagan Administration, Roberts had argued in a brief that Roe v. Wade should be overturned, but that in his confirmation hearings to the court of appeals, Roberts stated that Roe v. Wade is settled law that he would faithfully apply as a judge. “These are not inconsistent positions,” said Fahling. “They reflect a consistent and principled jurisprudence that understands the principle of authority and the rule of law.”

Fahling explained that “as a government lawyer, Roberts could argue that Roe should be reversed, but as an appellate court judge, he held an office under the ultimate authority, by constitutional design, of the Supreme Court. He had no authority to reverse Roe as an appellate court judge, but if confirmed as a Supreme Court justice he will have that constitutional authority.”