Aug. 10, 2005 — -- This week the National Abortion Rights Action League launched a television advertisement against Supreme Court nominee John Roberts that paints him as complicit in violent, anti-abortion crimes.
"I'm reluctant to criticize any organization that has done and continues to do as much for the important protection of women's reproductive rights as NARAL does," Walter Dellinger III, former solicitor general for President Clinton, told ABC News. "But I think this ad is unfair."
The advertisement is based on a 1991 "friend of the court" brief Roberts filed as deputy solicitor general in the administration of George H.W. Bush. In the U.S. Supreme Court case Bray v. Alexandria Women's Health Clinic, anti-abortion protesters challenged whether an 1871 law that attempted to protect blacks from the Ku Klux Klan could be used against them. Their ranks included several militant anti-abortion activists, including Michael Bray, who in 1985 was convicted of conspiracy and possessing unregistered explosive devices related to 10 abortion clinic bombings.
The U.S. government sided with the anti-abortion protesters. "I think it's important to clarify what it is that we did and what we did not do," Roberts told PBS in August 1991. "What we did not do is take a position supporting the activities of the Operation Rescue protesters."
Roberts went on to explain that "the law under which the abortion clinic providers and patients were suing the demonstrators did not apply in this case and did not give the federal court jurisdiction. The law is called The Klu Klux Klan Act of 1987 and that conveys a pretty good idea about what the law was intended to do. It was directed against people going out trying to interfere with the constitutional rights of blacks."
But in this case, the law was not relevant because opposing abortions is not the same as discriminating against women as a class of Americans, Roberts said.
The case was full of nuance and complexities, and certainly many, including Dellinger, argued that Roberts was arguing the wrong side of the case. Ultimately the U.S. Supreme Court ruled in favor of Roberts' side of the argument, with Roe v. Wade supporters Anthony Kennedy and David Souter siding with the 6-3 majority that the law was not germane. Justice Sandra Day O'Connor dissented. Soon afterward, Congress passed a law to preserve access to clinics.
But none of this nuance is in the NARAL ad, which begins by noting that "seven years ago, a bomb destroyed a women's health clinic in Birmingham, Ala."
"When a bomb ripped through my clinic," Emily Lyons, the clinic director, says in the ad. "I almost lost my life.
"Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber," the announcer intones. "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."
Dellinger says "there's nothing in the argument or the briefs that Judge Roberts presented to the Supreme Court on behalf of the United States that could remotely be characterized as excusing violence. That's just not fair."
But NARAL stands by its ad.
Nancy Keenan, president and chief executive officer of NARAL/Pro-Choice America, says it's fair to tie Roberts to clinic bombings even if the specific case had nothing to do with bombings.
"This is a case that had the tool that clinics used to stop the bombing," she said. "And they took that tool away."
Keenan also dismisses criticism that the Alabama bombing took place seven years after Roberts' court filings. "This is about the violence that was happening at that moment in our history. She [Emily Lyons] was just a reflection of what was going on."
Other abortion rights groups agree. "The government didn't have to intervene in this case," said Vicki Saporta, president of the National Abortion Federation. "They chose to intervene, and he led that intervention, and it was easy to see that this would take away a law that was being used to protect women who were seeking reproductive health care services. I don't think today that the American public would stand for the government choosing to side with domestic terrorists."
In response to the controversy, the White House released a 1986 memo Roberts wrote in which he condemns abortion bombers as "criminals" who "should be prosecuted to the full extent of the law." Separately, a pro-Roberts group, Progress for America, began running a TV ad in which it accuses NARAL of taking "the low road" and "making a desperate and false attack ... recklessly distorting Judge Roberts' record."
Ellen Davis and Kirit M. Radia contributed to this story.