NARAL's slander of John Roberts helps his confirmation

Jacob Sullum
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Posted: Aug 12, 2005 12:00 AM

In addition to his ambiguous record as a lawyer and judge, Supreme Court nominee John Roberts has the benefit of opponents who seem determined to discredit themselves and guarantee his confirmation. This self-destructive impulse is epitomized by NARAL Pro-Choice America's despicable TV ad linking Roberts to "violent fringe groups."

 So far the main effect of the ad has been to generate sympathy for Roberts and hostility toward NARAL, even among supporters of abortion rights. The line between fetus and person may be hard to draw, but NARAL's dishonest and dishonorable ad clearly crosses the line between legitimate criticism and reckless slander.

 The spot opens with images of the New Woman/All Women Health Clinic in Birmingham after it was attacked by anti-abortion bomber Eric Rudolph in 1998. "I almost lost my life," says clinic nurse Emily Lyons, who was seriously injured in the blast, which killed an off-duty police officer working as a guard.

 Then, over a photo of Roberts against a background showing a legal document, the announcer says, "Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber." Lyons reappears, saying, "I'm determined to stop this violence, so I'm speaking out." The ad closes with the announcer declaring, "America can't afford a justice whose ideology leads him to excuse violence against other Americans."

 NARAL is referring to a 1989 lawsuit in which abortion clinics sought a federal injunction to prevent protesters from trespassing on their property and blocking access to their buildings.

 Contrary to the ad's implication, the case had nothing to do with attacks like the one in Birmingham, although one of the protesters had been convicted in 1985 of charges related to abortion clinic bombings.

 Nor was the issue in the case whether it was OK for anti-abortion activists to block clinic entrances, a clear violation of state law. The issue was whether the blockades violated federal law -- in particular, an 1871 statute that prohibits conspiracies to deprive "any person or class of persons of the equal protection of the laws."

 The abortion clinics claimed the blockades amounted to sex discrimination and were therefore covered by the law. Roberts, arguing on behalf of the first Bush administration as a deputy solicitor general, said the law, a response to Ku Klux Klan activity aimed at blacks, was meant to cover racial discrimination, not sex discrimination. In any case, he said, an anti-abortion blockade does not target people based on their sex; it targets them based on their desire to obtain or facilitate abortions.

 The Supreme Court decided it was not necessary to address the first argument, because it agreed with the second one. In 1993, a 6-to-3 majority ruled that the clinics were not entitled to the federal injunction they were seeking. By NARAL's logic, then, not only Roberts, but six members of the Supreme Court were guilty of "supporting violent fringe groups" and "excus[ing] violence."

 A group that insists on the distinction between supporting the right to choose an abortion and supporting abortion itself should not have trouble grasping the distinction between supporting a legal interpretation that benefits anti-abortion protesters and supporting the protesters themselves.

 Nor should it be blind to the difference between opposing an unauthorized federal injunction against disruptive anti-abortion protests and endorsing those protests, let alone excusing a clinic bombing that occurred five years after the case was decided.

 "The ad uses the classic tactic of guilt by association," notes FactCheck.org, a nonpartisan project of the Annenberg Public Policy Center at the University of Pennsylvania. "It is false to suggest that Roberts supported the actions of 'violent' groups or clinic bombers because he argued that a law aimed at the Ku Klux Klan could not be used against those who blockade abortion clinics."

 NARAL is sticking to its false equation. "It's tough and it's accurate," NARAL President Nancy Keenan told The New York Times in response to criticism of the ad. "It has done exactly what we expected it to do."

 If Keenan means it has stirred up the NARAL faithful and generated contributions, maybe she's right. But if she means it has made Roberts' confirmation less likely, she is fooling herself. By mendaciously tarring Roberts as a fellow traveler of homicidal bombers, NARAL's absurd attack has diverted the debate about his nomination, making it less likely that we will learn anything interesting or useful about his views.