John G. Roberts Jr.'s 1991 arguments in a case involving the right of protesters to block access to abortion clinics emerged Monday as a central point of contention between opponents and supporters of his nomination to the U.S. Supreme Court.
A leading abortion rights group, NARAL Pro-Choice America, released the first anti-Roberts attack ad, highlighting his role in Bray vs. Alexandria Women’s Health Center, a case the high court heard that year. “America can’t afford a justice whose ideology leads him to excuse violence against other Americans,” the ad says.
At the time, Roberts was the principal deputy in the U.S. solicitor general’s office, which filed a friend-of-the-court brief on the side of the protesters. Citing attorney-client privilege, the White House has refused to make public any internal Justice Department documents from that period of Roberts’ career. Democrats say release of the papers could shed light on his motivations for intervening in that case and others.
The NARAL ad suggests that the court’s decision in the Bray case encouraged abortion opponents to adopt increasingly aggressive tactics. It features a nurse who was severely injured in a 1998 clinic bombing saying, “I’m determined to stop this violence, so I’m speaking out.”
NARAL plans to spend $500,000 over the next two weeks to broadcast the ad on cable news channels in Maine and Rhode Island, the home states of three of the more moderate Republican senators.
Roberts’ supporters responded quickly.
“President Bush called for a dignified process, and this type of attack certainly doesn’t qualify as dignified,” said White House spokeswoman Dana Perino. “Every word in the ad is false and dishonest, and it comes from a group that is outside the mainstream.”
The Republican National Committee issued a release insisting that Roberts was only acting on behalf of the administration of George H.W. Bush, which was arguing that the protests did not meet the criteria for discrimination in the law under challenge. The committee also said Roberts’ brief did not defend the use of violence.
The RNC cited a memo written by Roberts in 1986, when he was an assistant in the White House counsel’s office, that makes the opposite argument: “No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals,” Roberts wrote.
The White House released that document last week in what some saw as a preemptive move to deflect criticism of Roberts’ participation in the Bray case.
NARAL President Nancy Keenan said the decision by Roberts and his boss, then-Solicitor General Kenneth W. Starr, to file the friend-of-the-court brief was clearly political.
“We would assume that Mr. Roberts does abhor this kind of violence,” Keenan said. “But this was a voluntary action by the solicitor general’s office to intervene.... He was a political appointee, and he was the architect of policy in that office and the strategy they were using.”
During the 1980s, members of Operation Rescue and other groups sought to prevent abortions by shutting down clinics through human blockades. The protesters massed on the sidewalks outside clinics and tried to stop doctors, nurses and patients from entering. Usually, they overwhelmed the police. However, if police came in force to break up the blockades, the protesters moved on to other clinics.
Keenan noted that in the four years before the Bray case was decided, there had been 48 bombings and arsons of abortion clinics in 24 states.
Defenders of abortion rights looked for a legal weapon to counter the blockades, and they thought they had found it in the Ku Klux Klan Act of 1871 -- originally passed to authorize the federal courts to protect newly freed slaves from violence by whites.
The law applies whenever “two or more persons ... conspire for the purpose of depriving ... any persons or class of persons” of their equal rights under the Constitution. It permits judges to issue orders that restrain those who have violated the law.
In 1989, the National Organization for Women sued Operation Rescue in federal court in Alexandria, Va., after a series of clinic blockades. A federal judge ruled that the protesters had conspired to prevent women from obtaining legal abortions, and he issued an order making the protesters subject to arrest if they trespassed near abortion clinics. The U.S. 4th Circuit Court of Appeals in Richmond, Va., upheld that decision.
Operation Rescue lawyers appealed. The Supreme Court agreed to hear the case, which was closely watched nationwide.
Starr and Roberts notified the court that they would file a brief on the side of Operation Rescue, and they asked for time to argue the issue before the justices. Under U.S. law, the solicitor general’s primary job is to represent the federal government before the high court, but the office is also free to intervene in other cases that involve some aspect of federal law.
Roberts appeared before the court, opening his remarks by saying that he was not defending the acts of the protesters. Instead, he argued that the Ku Klux Klan Act did not apply in the context of abortion. The century-old law applied only to a “discriminatory deprivation of rights, not simply the deprivation of rights,” he said.
“Opposition to abortion is [not] the same as discrimination on the basis of gender. That’s wrong as a matter of law and logic,” he said. Many women as well as men oppose abortion, and it is not because they hate women, he argued.
The American Civil Liberties Union, the NAACP Legal Defense Fund and the Virginia attorney general were among those who urged the court to rule for NOW. On the other side were several groups that opposed abortion, including Concerned Women for America, the Free Congress Foundation and American Victims of Abortion.
The Supreme Court heard arguments twice, with Roberts appearing each time. On Jan. 13, 1993, just a week before Starr and Roberts left office, the court announced its decision.
Justice Antonin Scalia, writing for a 6-3 majority, agreed with Roberts that the Ku Klux Klan Act did not apply to abortion protests because opposition to abortion was not the same as discrimination against women.
“Whether one agrees or disagrees with the goal of preventing abortion, that goal in itself does not remotely qualify for such harsh description and for such derogatory association with racism,” Scalia said.
In dissent, Justices John Paul Stevens, Harry A. Blackmun and Sandra Day O’Connor said the court was turning a blind eye to “mob violence.” This case “presents a striking contemporary example of the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Klan Act and gave it its name,” Stevens wrote.
The court’s ruling proved to be only a temporary victory for abortion protesters. Democrat Bill Clinton was inaugurated a week after the Bray decision was handed down, and his administration pressed for federal legislation that would make it a crime to obstruct access to healthcare facilities, including abortion clinics. The following year, in May 1994, Clinton signed the Freedom of Access to Clinic Entrances Act into law.