Nov. 30 (Bloomberg) -- U.S. Supreme Court nominee Samuel A. Alito Jr., as a government lawyer in 1985, recommended that the Justice Department ask the high court to consider overturning its 1973 decision that legalized abortion.

Alito, then an assistant to Solicitor General Charles Fried, said in a memorandum that the Justice Department should support restrictions on abortion in Pennsylvania and Illinois. U.S. appeals courts had invalidated both laws and the states were appealing to the Supreme Court. The memo was among papers released in Washington today by the National Archives and Records Administration.

Alito wrote that the appeals gave the administration of President Ronald Reagan an ``opportunity to advance the goals of bringing about the eventual overruling'' of the landmark Roe v. Wade decision, which legalized abortion in all states.

``We should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether and, if so, to what extent that decision should be overruled,'' Alito wrote in the June 3, 1985, memo to Fried.

President George W. Bush nominated Alito, 55, a federal appeals court judge since 1990, to replace Justice Sandra Day O'Connor, who has voted to uphold abortion rights.

The Supreme Court today heard arguments on its first abortion dispute in five years, involving a challenge to a New Hampshire law that requires parental notification before pregnant teen-age girls undergo an abortion.

Schumer Response

Democratic Senator Charles Schumer said in a statement that Alito's memo ``cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman's right to choose'' if he becomes a justice. ``The language and strategic thinking'' that Alito's memo displays ``is stunning,'' the New York senator said.

Vermont Senator Patrick Leahy, the Judiciary Committee's top Democrat, said he would like to see other memos Alito wrote for the solicitor general.

During the Senate's consideration of Chief Justice John G. Roberts Jr.'s confirmation earlier this year, the government refused to release memos he had written as a deputy solicitor general from 1989 to 1993 during the administration of President George H.W. Bush.

The Bush administration, citing a need to protect the confidentiality of legal advice of government lawyers, rebuffed a request by Senate Democrats for memos Roberts wrote about legal arguments the government might make before the Supreme Court.

Privilege Waived

White House spokesman Steve Schmidt said in an e-mail that the Alito memos were among documents the Justice Department sent to the National Archives in 1999. The transfer ``waived all privileges'' over the Alito memos released today, and other legal memos Alito wrote that are still in Justice Department files won't be released, he said.

NARAL Pro Choice America Inc., the largest U.S. abortion rights group, and Planned Parenthood Federation of America Inc. have urged the Senate to reject Alito's nomination, citing his 1991 dissent from an appeals court decision that invalidated a Pennsylvania law requiring women to notify their husband before having an abortion.

They also cited a Nov. 15, 1985, application Alito wrote for a political job in the Justice Department that said he was ``particularly proud'' of his participation in the agency's arguments that ``the Constitution does not protect a right to an abortion.''

Different Perspective

In meetings with individual senators, Alito stressed that as a judge he has a different perspective on issues than as a legal advocate and vowed to keep an open mind on the issue of abortion, lawmakers said.

Alito's views on abortion ``will be a central line of questioning'' at confirmation hearings set to begin Jan. 9, Senator Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee, said in a statement.

Alito's record as a judge is ``the best predictor of what kind of justice he will be,'' Schmidt said. Alito ``has voted both to strike down abortion restrictions and to uphold abortion restrictions, each time attempting in good faith to apply the Supreme Court's shifting abortion jurisprudence.''

In his June 3, 1985, memo to Fried, Alito said that ``no one seriously believes that the court is about to overrule Roe v. Wade.'' Still, he said the Supreme Court's move to review the appeals court decisions ``may be a positive sign.''

`Frontal Assault'

Alito concluded that urging the high court to give the states a freer hand to regulate abortions was tactically ``preferable to a frontal assault on Roe v. Wade'' to avoid a decision upholding the 1973 abortion ruling from being ``portrayed as a stinging rebuke'' of the Reagan administration.

The Justice Department went one step further than Alito recommended, asking the justices in a court brief to reconsider the Roe decision ``and on reconsideration abandon it.''

Alito criticized the decisions by the Philadelphia-based 3rd U.S. Circuit Court of Appeals, which he joined five years later, and the Chicago-based 7th U.S. Circuit Court of Appeals for their ``refusal to allow breathing room for reasonable state regulation'' of abortion.

He found objectionable the two courts' invalidation of provisions that required doctors to provide women seeking abortion with medical facts about the procedure, such as the gestational age of the fetus. The Pennsylvania law required that women be told that the father would be liable to pay child support.

`Moral Choice'

Alito wrote that deciding to have an abortion involves a ``moral choice'' and that Roe v. Wade ``took from state lawmakers the authority to make this choice'' and gave women in the first three months of pregnancy the ``absolute and unreviewable authority over the future of the fetus.''

``Should not, then, the woman be given relevant and objective information bearing on this choice?'' Alito wrote.

The Pennsylvania law required women to give ``informed consent'' to abortion after a 24-hour waiting period and after being told that the procedure could have unforeseeable risks. It also required a second physician for abortions in which the fetus might survive. The justices did not rule on the Illinois case.

The Supreme Court, on June 11, 1986, struck down provisions of Pennsylvania's law that the justices said were designed to ``intimidate'' women into continuing pregnancies. O'Connor was among the dissenters.

Separately, Alito disclosed in a 64-page Senate questionnaire that he has a $2.1 million net worth. He owns $788,750 in securities and a home worth $869,550 and has no debts.

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net; Robert Schmidt in Washington at rschmidt5@bloomberg.net.

Last Updated: November 30, 2005 17:40 EST