Abortion stance becomes subject of speculation

The abortion argument certainly charges the atmosphere surrounding the Supreme Court nomination of John G. Roberts Jr., but his stance on the question is hardly clear. Papers he signed as a member of a government legal team say one thing; his words more than a decade later, seemingly something else.

The dearth of solid information is fueling rampant speculation over his views on what is sure to be a central question as President Bush's nominee to the Supreme Court faces hearings on Capitol Hill: whether he thinks the 1973 Roe v. Wade ruling that made abortion widely legal should be overturned.

Even his wife's views are being studied as attempts are made to divine the beliefs of this Midwest-raised, Harvard-educated Catholic. Jane Sullivan Roberts, a prominent Washington attorney, is an anti-abortion advocate, a one-time board member of Feminists for Life who does pro bono legal work for the group.

Roberts, 50, and his wife, also a Roman Catholic, have been married less than a decade and have two young adopted children.

"Women are independent thinkers, so she and he may not be in agreement," said Serrin Foster, president of Feminists for Life, which also fights violence against women and backs child support enforcement.

"People are looking for all sorts of hints," Foster said. "It's like reading tea leaves. What are you going to get out of it? ... Just drink the tea."

It's not just advocates who want to know. An Associated Press-Ipsos poll released yesterday says more than half of those surveyed - and a solid majority of women - want to know Roberts' position on abortion before the Senate votes on whether to elevate him to the high court.

"Roe v. Wade has become this symbol of the culture wars generally," said Richard W. Garnett, who teaches criminal and constitutional law at University of Notre Dame Law School. "It's taken on this larger than life thing. It symbolizes red versus blue."

Court insider

Typically, senators could look at a nominee's opinions on a given subject. Because Roberts has been on the federal appeals court for two years, that record is small, and abortion isn't part of it. Neither has Roberts published articles or delivered speeches on the subject.

"Relative to this very scant collection of tangible specifics that we've got, what looms far larger is Roberts is someone who for 25 years has been a complete Supreme Court insider," said David J. Garrow, a legal historian at Emory University and author of Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade.

Garrow points to Roberts' 1980 clerkship for now-Chief Justice William H. Rehnquist; his work in the solicitor general's office; his private practice, which put him before the Supreme Court many times.

"That says to me that stylistically, ideologically, he's not going to be a Scalia or a Thomas, not someone who's going to upset any apple carts like Roe v. Wade," Garrow said, referring to Justices Antonin Scalia and Clarence Thomas.

Regardless of how a justice views Roe, Garrow said, the justices tend to abide by the principle of stare decisis, Latin for "let the decision stand." That doctrine informed a 1992 decision affirming abortion rights, he said.

Still, a Justice Roberts might not be willing to let Roe stand untouched. He could be willing - like the woman he would replace, Sandra Day O'Connor - to add restrictions making it more difficult to get an abortion.

What is on the record about Roberts is this: While deputy solicitor general in 1990, he helped write a legal brief that said Roe v. Wade was "wrongfully decided and should be overruled."

But in 2003, when he was last before the Senate Judiciary Committee, he wrote in an answer to a question that he was a government lawyer in the first President George Bush's administration, and "I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of his client.

"Roe is binding precedent and, if I were confirmed as a circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so." He also called Roe "settled law."

Michael I. Meyerson, a constitutional law professor at the University of Baltimore, said those statements do not mean that he supports Roe but that he could not as a lower-court judge buck the high court. This time, Meyerson said, Roberts is up for a seat on the Supreme Court, and there he could rule in any way he pleases on any case, regardless of how it would affect a law that has been in place for decades.

Lining up on both sides

Advocates have quickly lined up for and against Roberts, many based on how they think the judge would rule on Roe. Abortion rights advocates have come out against him.

The Web site of Naral Pro-Choice America, for one, accuses Roberts of "hostility to reproductive rights," mentioning his work in the solicitor general's office.

Anti-abortion advocates appear pleased with the selection, with some conservative bloggers latching onto his wife's credentials as evidence of his leanings.

Nancy Northup, president of the Center for Reproductive Rights, said a spouse shouldn't be tagged with "guilt by association."

"She, obviously, is very well-connected to the anti-choice community," Northup said. "They are very excited about this nomination, and they may have reason to know more about his thinking on this."

Roberts would be the fourth Catholic on the current high court, joining Scalia, Thomas and Anthony M. Kennedy. Separating personal beliefs and legal work is part of what judges are charged with doing, several said.

Senators will ask tough questions about Roberts' stance on many rulings that have shaped abortion law, and many of those should be fair game, several lawyers said. But Garnett, who clerked for Rehnquist in 1996, said there are some things he shouldn't have to answer.

"I think it's going to be perfectly within his rights to say, 'Justice Ginsburg didn't have to tell you what she was going to do, and I don't either,'" he said of Ruth Bader Ginsburg.

Sun staff writer Gail Gibson contributed to this article.