This memo was written by two Reagan White House lawyers, Deborah K. Owen and John G. Roberts -- who is now chief justice of the U.S. Supreme Court. It responds to some briefing points on AIDS that were put together in advance of a presidential press conference. Anticipating questions about allowing children with AIDS to attend public schools, the original briefing points advised sympathy for parents and children and emphasized that there was no danger from casual or routine contact. However, Roberts wrote, "I would not like to see the President reassuring the public on this point, only to find out he was wrong later. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be, and no scientist has said AIDS definitively cannot be so transmitted." Reagan was asked the question at his press conference and he responded: "I'm glad I'm not faced with that problem today and I can well understand the plight of the parents and how they feel about it. … And yet medicine has not come forth unequivocally and said 'This we know for a fact, that it is safe.' And until they do I think we have to do the best we can with this problem. I can understand both sides of it." The next day the head of the Centers for Disease Control and the top scientist at the National Institutes of Health called a press conference to emphasize that AIDS is a blood-borne sexually transmitted disease, which cannot be spread by casual contact.
THE WHITE HOUSE:
September 13, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM: JOHN G. ROBERTS (initialed)
DEBORAH K. OWEN (initialed) (as to judges)
SUBJECT: Domestic Briefing Materials for Press Conference
David Chew has asked that comments on the above-referenced briefing materials be sent directly to Tom Gibson by 2:00 p.m. today. The materials discuss tax reform, the budget, trade, agriculture, AIDS, judicial selection, revisions to E.O. 11246 (affirmative action), comparable worth, Hispanic poverty, the supposed lack of women appointees, immigration reform, congressional relations, and bank failures.
The AIDS briefing points consider the dispute over admitting AIDS-afflicted children into the public schools. The third bullet item contains the statement that "as far as our best scientists have been able to determine, AIDS virus is not transmitted through casual or routine contact." I do not think we should have the President taking a position on a disputed scientific issue of this sort. He has no way of knowing the underlying validity of the scientific "conclusion," which has been attacked by numerous commentators. I would not like to see the President reassuring the public on this point, only to find out he was wrong later. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be, and no scientist has said AIDS definitely cannot be so transmitted. I would simply delete the third bullet item.
I would also drop the last bullet item, stating that the President does not view this issue as "a strictly civil rights issue." The previous points state how the President sees the issue, and it should be left at that, without introducing possibly confusing references to civil rights. Certainly civil rights concerns are implicated, and this is in that sense a "civil rights issue," but that does not mean countervailing concerns do not outweigh any civil rights claims.
Federal Judge Selection/Too Political?:
The briefing materials in this area make five points: (1) charges of abuses are "moot"; (2) the President's nominees have received "extremely high" ABA ratings; (3) judicial appointment is a "Constitutional right and responsibility of the Chief Executive"; (4) it has been the practice of this President and his predecessors to appoint judges "who share similar attitudes concerning the role of the judiciary"; and (5) it "sounds like some folks are finally getting around to harvesting sour grapes from last November." (Emphasis in original.)
Point 1 is unclear and should be deleted, in my view. The description of abuse charges as "moot" suggests that there possibly may be substance to them. As an alternative, the first point would more appropriately be the one you made in the National Public Radio interview: "This Administration looks for nominees who are intelligent and very well-qualified." Point 2, relating to the ABA ratings, supports this.
I have no objection to Point 3 or Point 4. However, the latter would be strengthened if it were followed by a Point similar to one you made in the NPR interview: "There is no 'litmus test.' This Administration is attempting to restore a balance on the Federal judiciary that does not exist now with the judicial activism we see. Judges should interpret the law, not make it or execute it."
Point 5 should also be deleted, even though it is probably true to a certain degree. It implies that politics may be involved, a position we are trying to disclaim in the earlier Points.
Finally, since questions about the Administration's appointment of women and minorities to the bench are frequently raised in the press, and might be the focus of an initial, or follow-up, question, it might be advisable for Mr. Gibson to provide the President with back-up materials describing the Administration's achievements in this area.
The E.0. 11246 points are noncommital, simply noting that the President hopes for a color-blind society and would support changes to the extent they would further this goal.
The comparable worth points are incomplete in that they contain no reference to the recent Ninth Circuit decision. I would add the following between the current third and fourth bullets: "The U.S. Court of Appeals for the Ninth Circuit recently rejected a comparable worth suit brought by state and local government workers against the State of Washington. That court decision reaffirms what we have been saying."
The attached draft response to Tom Gibson makes the foregoing recommendations.
Federal Efforts to Find a Cure:
AIDS education and research has been a top priority of the Department of Health and Human Services for over four years.
Over $100 million is being spent on AIDS research and education in 1985.
RR recently approved revisions to my 1986 budget, increasing initial requests for AIDS research and education by $41 million, for a total of $126 million.
Leading scientists have stated that never before in history has so much progress toward understanding and combating a disease been made in so short a time.
AIDS/Afflicted Children Being Allowed to Attend Public Schools:
I have deep sympathy for the child and the parents of a child who is afflicted with this horrible disease.
I can understand the concerns of parents who are fearful of their child contracting the disease in public places.
However, as far as our best scientists have been able to determine, AIDS virus is not transmitted through casual or routine contact.
There is the need for greater research and answers.
And there is the need for rational consideration of the problems posed by AIDS -- considerations that balance public health concerns with those of afflicted children in critical stages of social development. We must not make them into modern day lepers.
I do not see this issue as some have framed it -- a strictly civil rights issue.