'90 Brief Stirs Early Debate

But many hands typically contribute to such drafts, beginning with lawyers for the affected federal agency -- in this case the Health and Human Services Department, followed by staff attorneys in the solicitor's office and then ending with a deputy solicitor general, the solicitor general, and on controversial or sensitive matters, the attorney general or his immediate aides, according to Merrill and two other former government lawyers privy to the matter.

Merrill, who said he personally viewed the Roe decision as a mistake, said he does not specifically know who drafted that language, but he ascribed its inclusion in the document to "presidential politics" and policy that was settled before Roberts was appointed. In 1989 -- a year after George H.W. Bush was elected president after pledging to overturn Roe v. Wade -- the Solicitor General's Office had argued in a case involving parental notification of abortions that "we continue to believe that Roe was wrongly decided and should be overruled."

"It was simply another affirmation," Merrill said. "It was important not to send a message we had changed our mind." Also, Michael J. Astrue, a Republican lawyer who was then HHS chief counsel and who signed the brief, said that although he was surprised by that particular language, "it doesn't seem to me that's the kind of decision Roberts would make. . . . I would be very surprised if this was a 'ground up' suggestion he was involved in."

Merrill, Astrue and Lawrence G. Wallace, the senior civil servant in the Solicitor General's Office when the brief was prepared, each said they had not discussed abortion with Roberts and did not know his personal view of the issue. Starr did not return phone calls yesterday.

"It was the position of the government at that time, as expressed in briefs filed in five previous cases," Roberts told Sen. Edward M. Kennedy (D-Mass.) in a written response to questions about the brief Feb. 5, 2003. "I do not believe it is proper to infer a lawyer's . . . views from the position taken on behalf of a client."

Antiabortion advocates said they have seen signs besides the brief that Roberts is one of their own. On conservative blogs, writers have noted that Roberts's wife, Jane, has had a lengthy affiliation with Feminists for Life, a Washington-based group that opposes abortion. Serrin M. Foster, the group's president, said Jane Roberts served on the board of directors from 1995 to 1999, and serves as the organization's pro-bono counsel as needed.

In 2003, the organization recognized her as a member of its Elizabeth Cady Stanton Circle after Roberts donated between $1,000 and $2,499. In a 2001 interview with its magazine, American Feminist, Jane Roberts offered legal advice on workplace benefits that accrue to adoptive parents and birth mothers. The Roberts's two small children, Josephine and Jack, are adopted.

Serrin said John Roberts has had nothing to do with the group, which she said focuses most of its efforts on providing resources to pregnant women on college campuses. As for how Roberts might vote on the subject if he is elevated to the Supreme Court, she added: "I have no idea. You have indications about where people are, but they can sometimes surprise you."

Roberts and his wife are practicing Catholics, attending the Church of the Little Flower in Bethesda. Through a spokesman at the archdiocese, their pastor, Monsignor Peter Vaghi, said he did not want to discuss the couple out of respect for their privacy but added: "I'm delighted he's been nominated, and my prayers are with the family."