Abortion-rights groups are citing John Roberts’s involvement in a 1990 brief to the Supreme Court as a reason to oppose his nomination. The case concerned a restriction on the ability of clinics receiving federal funds to recommend abortion or make abortion referrals. The brief noted that the administration “continue[d] to believe that Roe was wrongly decided and should be overruled.”

Here’s a passage from a Washington Post story about the controversy yesterday: “These words were a ‘big surprise’ in the brief, said Kate Michelman, former president of NARAL Pro-Choice America. . . . 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.”

(A big surprise? That the administration “continue[d]” to believe what it had previously believed?)

NARAL had a different view of whether Roe was germane to the case at the time. At the time, it submitted a brief along with dozens of other abortion-rights groups. Here’s how the brief’s argument begins: “I. THE REGULATIONS UNDULY BURDEN A WOMAN’S FUNDAMENTAL PRIVACY RIGHT TO MAKE INFORMED REPRODUCTIVE DECISIONS FREE FROM UNWARRANTED GOVERNMENTAL INTERFERENCE. The regulations prevent the women served by Title X clinics from freely and independently deciding whether or not to carry a pregnancy to term, as is their right under Roe v. Wade, 410 U.S. 113 (1973), and cases following Roe.”

The government could have decided not to mention Roe in its brief–just as it could, in theory, have decided not to defend the funding restriction. But mentioning Roe was hardly a gratuitous sop to pro-lifers. At the time, NARAL and its allies thought that Roe was extremely relevant to the case.