WASHINGTON - John G. Roberts Jr.'s 1991 arguments in a case involving the right of protesters to block access to abortion clinics emerged yesterday as a central point of contention between opponents and supporters of his nomination to the Supreme Court.
A leading abortion rights group, NARAL Pro-Choice America, released the first anti-Roberts attack ad, highlighting his role in Bray v. Alexandria Women's Health Center, a case the Supreme 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 those papers could shed light on his motivations for intervening in the 1991 case and others.
The NARAL ad suggests that the court's decision in the Bray case, which went against the abortion clinics, encouraged abortion opponents to adopt increasingly aggressive tactics.
Roberts' supporters responded quickly.
The Republican National Committee issued a release saying Roberts was only acting on behalf of the administration of the first President Bush, which was arguing that the protests did not meet the criteria for discrimination in the law under challenge. The committee also said that Roberts' brief did not defend the use of violence.
The RNC noted 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 then.
NARAL President Nancy Keenan said the decision by Roberts and his boss, Solicitor General Kenneth W. Starr, to file that friend-of-the-court brief in 1991 was clearly political.
During the 1980s, members of Operation Rescue and other militant protesters sought to prevent abortions by shutting down clinics through the use of human blockades.
Defenders of abortion rights looked for a legal weapon to counter the blockades and thought they had found it in the Ku Klux Klan Act of 1871, 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.
In 1989, the National Organization for Women sued Operation Rescue in federal court in Alexandria, Va., after a series of clinic blockades.
After many appeals, the Supreme Court agreed to hear the case, which was closely watched nationwide.
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 but only to a "discriminatory deprivation of rights, not simply the deprivation of rights."
The Supreme Court heard arguments twice, with Roberts appearing each time.
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.
In dissent, Justices John Paul Stevens, Harry Blackmun and Sandra Day O'Connor said the court was turning a blind eye to "mob violence."
The ruling was a temporary victory for abortion protesters. During the Clinton administration, Congress enacted a law making it a crime to obstruct access to health care facilities, including abortion clinics.
The Los Angeles Times is a Tribune Publishing newspaper.