Let’s Go Crazy

As a close observer of the political scene, I suppose I should be shock-proof. But what NARAL did today shocked me. It began running an anti-John Roberts television ad featuring Emily Lyons, victim of a 1998 bombing of an abortion clinic in Alabama that was carried out by Eric Rudolph. The ad goes as follows:

Announcer: “Seven years ago a bomb destroyed a woman’s health clinic In Birmingham, Alabama.”
Lyons: “”The bomb ripped my clinic. I almost lost my life. I will never be the same.”
Announcer: “”Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber.”
Lyons: “I am determined to stop this violence, so I’m speaking out.”

It is not easy to fit so many lies and distortions into a 30-second commercial. The case referred to by NARAL is Bray v. Alexandria Clinic; you can read the Supreme Court’s opinion here. The Bray case was decided in 1993; John Roberts was one of six Justice Department lawyers who signed an amicus brief on behalf of the federal government, and he argued the case for the government. You can read the government’s brief here.
The Bray case arose out of an effort by the Alexandria Clinic and various pro-abortion entities to obtain an injunction against Operation Rescue to prohibit it from carrying out “rescues” at abortion clinics. The Court described the conduct at issue as follows:

Among its activities, Operation Rescue organizes antiabortion demonstrations in which participants trespass on, and obstruct general access to, the premises of abortion clinics.

No bombing or violence of any kind was at issue in Bray. Nor was there any question about the legality or propriety of the demonstrations carried out by Operation Rescue; they were plainly illegal under Virginia law. The issue addressed by the Court was whether, in addition to being an unlawful trespass, Operation Rescue’s demonstrations fell within the ambit of a federal statute, 42 U.S.C. 1985(3). That section prohibits conspiracies to deprive “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” Under Supreme Court precedents, one of the prerequisites for application of the statute is that “some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action.” Thus, the specific issue before the Court was whether opposition to abortion constitutes a discriminatory “animus” against women.
The federal government was not a party to the case; it filed an amicus or “friend of the court” brief because the Bush administration believed it had an interest in the outcome. Roberts and his colleagues explained the government’s interest as follows:

Various acts of Congress exclude abortion services from the ambit of federal medical assistance programs. … A decision by this Court that opposition to abortion is a form of gender-based discrimination could bring those laws into question, on the ground that they violate equal protection principles underlying the Due Process Clause by discriminating against women.

By a 6 to 3 vote, the Supreme Court agreed with the federal government that Section 1985(3) was inapplicable, in part because opposition to abortion cannot be equated with animus against women for purposes of the statute. Justice Scalia, writing for the majority, concluded:

Trespassing upon private property is unlawful in all States, as is, in many States and localities, intentionally obstructing the entrance to private premises. These offenses may be prosecuted criminally under state law, and may also be the basis for state civil damages. They do not, however, give rise to a federal cause of action simply because their objective is to prevent the performance of abortions, any more than they do so (as we have held) when their objective is to stifle free speech.

So NARAL misrepresents the Bray case in every particular. Roberts didn’t “support violent fringe groups” or a “convicted clinic bomber.” He supported the federal government’s position on a specific question of law–correctly, as the Court found. NARAL’s reference to a “convicted clinic bomber” is especially outrageous. The Bray case had nothing to do with a bombing by Eric Rudolph or anyone else, and Rudolph attacked the Birmingham clinic–the bombing that is referred to in the NARAL ad–eight years after Roberts wrote the brief on the Section 1985(3) issues.
For NARAL to suggest that John Roberts has ever done anything to support violence against abortion clinics (or anything else) is so far outside the bounds of civilized debate that one can hope that, even in today’s far-gone Democratic Party, sane voices will be raised to denounce NARAL’s advertising campaign.

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