In 1990, 14 states, abortion rights advocates and civil rights supporters challenged the George H.W. Bush administration's decision to bar the use of public funds for abortion counseling. The task of defending the policy fell primarily to a 35-year-old Justice Department lawyer named John G. Roberts Jr.
Roberts, who had been named to the senior political position in the Office of the Solicitor General 11 months earlier, oversaw the preparation of a brief for the Supreme Court in which he said barring that use of funds was constitutional and was faithful to the intent of Congress, several former colleagues said.
It was, by all accounts, a well-written if familiar recitation of facts. But right at the top of the 46-page brief, someone had inserted language denigrating Roe v. Wade, the Supreme Court's 1973 decision upholding a women's right to abortion. That language has helped place abortion at the center of early debate over Roberts's nomination to the Supreme Court and made it likely that questions about the brief's authorship will play a large role in the Senate confirmation hearings.
"We continue to believe that Roe was wrongly decided and should be overruled," said the Sept. 7, 1990, brief, which was signed -- as is customary in such cases -- by the Solicitor General, Kenneth W. Starr, and by an assistant attorney general, two department attorneys, and a deputy and an assistant in the solicitor's office, including Roberts.
The brief added in the same paragraph that "the Court's conclusions in Roe that there is a fundamental right to an abortion and that the government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution." It offered little else but this opinion on the subject.
Roberts was asked about the language two years ago during a hearing on his appellate bench appointment. He avoided saying whether the words reflect his own views or, as some former colleagues suggest, were a restatement of the administration's settled political views.
These words were a "big surprise" in the brief, said Kate Michelman, former president of NARAL Pro-Choice America, a group that in the past 48 hours has e-mailed its 800,000 members to urge that they call their senators and talk to friends about their opposition to a nominee who could overturn Roe v. Wade.
Although the language added to the brief was in keeping with Bush policy at the time, abortion rights supporters said it was not germane to the issues before the court, which upheld the Bush regulations.
Even if Roberts did not draft the paragraph, "he was part of an administration that was philosophically opposed to Roe vs. Wade. You don't get chosen by accident for positions in the Justice Department at that level. People in those positions are there because they share the views of the president," Michelman said.
Some abortion opponents have interpreted the language similarly, finding comfort in what they anticipate will be a new outlook on the court if Roberts is confirmed. Joe Giganti of the National Pro-Life Action Center said, "We are pleased with the fact that he makes clear with the brief he wrote that he absolutely understands the intrinsic flawed nature of the Roe v. Wade decision and that it should be overturned."
Giganti's only concern is that Roberts might be tempted to declare during the hearings that " he will do nothing to overturn Roe. If he were to take such a stand, then we couldn't support him. It is our fervent hope and belief that Judge Roberts has the integrity to stand strong."
Columbia University law professor Thomas W. Merrill, Roberts's Solicitor General's Office colleague when the brief was drafted, confirmed that Roberts was responsible for overseeing the brief's preparation.
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."