Washington – An advertisement that a leading abortion-rights organization began running Wednesday on national television quickly became the first flashpoint in the 3-week-old confirmation process for Supreme Court nominee John Roberts.
The ad opposes the nomination of Roberts, saying he is a man “whose ideology leads him to excuse violence against other Americans.”
Several prominent abortion-rights supporters as well as a neutral media watchdog group said the ad was misleading and unfair, and a conservative group quickly took to the airwaves with a countering advertisement.
The focus of the 30-second spot, which NARAL Pro-Choice America is spending $500,000 to place on the Fox and CNN cable networks over the next two weeks, is on an argument in an abortion-related case that Roberts made to the Supreme Court in the early 1990s. He was working in the first Bush administration as the principal deputy solicitor general at the time.
The question before the court then was whether a Reconstruction-era civil rights law intended to protect the freed slaves from the Ku Klux Klan would allow federal courts to issue injunctions against the increasingly frequent and violent demonstrations that were blocking access to abortion clinics.
The court heard arguments in the case, Bray vs. Alexandria Women’s Health Clinic, in October 1991 and then again the following October before finally ruling in January 1993, by a vote of 6-3, that the law did not apply. The decision prompted congressional passage of a new federal law to protect the clinics.
Roberts participated in both arguments, presenting the administration’s view that the law in question, the Ku Klux Klan Act, did not apply to the clinic protests.
In earlier cases, the Supreme Court had decided that the law, which prohibits conspiracies to deprive any person of the protection of the law, required proof that a conspiracy was motivated by an intent to discriminate.
In this case, two lower federal courts had found that the clinic protests met that test because they were a form of discrimination against women. But Roberts argued that the demonstrators were not singling out women, but rather were trying to “prohibit the practice of abortion altogether.”
He told the court that even though only women could become pregnant or seek abortions, it was “wrong as a matter of law and logic” to regard opposition to abortion as equivalent to discrimination against women.
Later, Roberts began his second argument by saying that the administration was not trying to defend the demonstrators’ conduct, but rather to “defend the proper interpretation” of the statute.
That distinction is blurred in NARAL’s advertisement, prepared by Struble Eichenbaum Communications, a Democratic media company. The spot opens with a scene of devastation, the bombing of an abortion clinic in Birmingham, Ala. in January 1998. Emily Lyons, a clinic employee who was seriously injured in the attack, appears on the screen. “When a bomb ripped through my clinic, I almost lost my life,” she says.
Roberts’ image then appears, superimposed on a faint copy of the brief he signed in the case. “Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber,” the narrator’s voice says.
The spot concludes by urging viewers: “Call your senators. Tell them to oppose John Roberts. America can’t afford a justice whose ideology leads him to excuse violence against other Americans.”
According to Factcheck.org, a nonpartisan project of the Annenberg Public Policy Center at the University of Pennsylvania that monitors political advertisements and speeches for accuracy, “the ad is false” and “uses the classic tactic of guilt by association.”
As the Factcheck critique began to be trumpeted by conservative groups early Wednesday, NARAL prepared a rebuttal against what it called “glaring errors” in the organization’s analysis.
Michael Bray, one of the defendants in the case, had been convicted several years earlier for his role in bombing abortion clinics, NARAL said, adding that since the Bush administration and Bray were on the same side of the Supreme Court case, “John Roberts did, therefore, side with a convicted clinic bomber” as well as with Operation Rescue, “a violent fringe group.”
Within the larger liberal coalition of which NARAL is a part, there was considerable uneasiness about the advertisement, although leaders of other groups generally refused to speak on the record.
One who did, Frances Kissling, the longtime president of Catholics for a Free Choice, called the ad said she was “deeply upset and offended” by the ad, which she called “far too intemperate and far too personal.”