1990 brief in abortion case re-emerges

WASHINGTON — 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 primarily fell to a Justice Department lawyer named John Roberts Jr.

Roberts, 35, 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 faithful to the intent of Congress, several former colleagues said.

It was, by all accounts, a well-written if familiar recitation of facts. But at the top of the 46-page brief, someone inserted language denigrating the Supreme Court's 1973 decision upholding a woman's right to abortion, Roe v. Wade. That language has helped place abortion at the center of early debate over Roberts' nomination to the Supreme Court and made it likely that questions about the brief's authorship will play a large role in the forthcoming Senate confirmation hearings.

"We continue to believe that Roe was wrongly decided and should be overruled," said the brief, which was signed by the solicitor general, Kenneth 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."

Roberts, asked about the language two years ago during a hearing on his appellate-bench appointment, avoided saying whether the words reflected his own views or were a restatement of the administration's political views.

Columbia University law professor Thomas Merrill, Roberts' Solicitor General's Office colleague when the brief was drafted, confirmed 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 (HHS), followed by staff attorneys in the solicitor's office and 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 said he does not know who drafted that language but ascribed its inclusion to "presidential politics" and policy that was settled before Roberts was appointed. "It was simply another affirmation," Merrill said.

Michael 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 Wallace, the senior civil servant in the Solicitor General's Office when the brief was prepared, each said he had not discussed abortion with Roberts, a Roman Catholic, and did not know his personal view of it. Starr did not return phone calls.

"It was the position of the government at that time, as expressed in briefs filed in five previous cases," Roberts told Sen. Edward 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."

Abortion opponents said they have seen signs besides the brief that he is one of their own. On conservative blogs, writers have noted that Roberts' wife, Jane, has had a lengthy affiliation with Feminists for Life, a group that opposes abortion. Serrin 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.

Foster said John Roberts has had nothing to do with the group.