Anti-Roberts ad called unfair

based on abortion clinic case

It says his ideology leads to excusing violence against other Americans

August 11, 2005|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - An advertisement that a leading abortion-rights organization began running on national television yesterday, opposing Supreme Court nominee John G. Roberts Jr. as one "whose ideology leads him to excuse violence against other Americans," quickly became the first flash point in the three-week-old confirmation process.

Several prominent abortion-rights supporters and a neutral media watchdog group called the ad misleading and unfair, and a conservative group quickly took to the airwaves with an ad countering it.

The 30-second spot - which NARAL Pro-Choice America is spending $500,000 to place on the Fox and CNN cable networks, and on broadcast stations in Maine and Rhode Island over the next two weeks - focuses on an argument Roberts made to the Supreme Court in an abortion-related case in the early 1990s, when he was principal deputy solicitor general working in the administration of the first President Bush.

The question before the court was whether a Reconstruction-era civil rights law intended to protect freed slaves from the Ku Klux Klan could provide a basis for federal courts to issue injunctions against the increasingly frequent and violent demonstrations that were aimed at blocking access to abortion clinics.

The court heard arguments in the case, Bray v. Alexandria Women's Health Clinic, in October 1991 and again the next October before ruling in January 1993, by a vote of 6-3, that the law did not apply.

Justice Sandra Day O'Connor, whom Roberts has been nominated to succeed, dissented. The decision prompted congressional passage of a 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 or class of persons of the equal protection of the laws," required proof that a conspiracy was motivated by a "class-based, invidiously discriminatory animus."

In the 1990s case, two lower federal courts had found that the clinic protests met that test because they were a form of discrimination against women.

Roberts argued that the demonstrators were not singling out women for discriminatory treatment 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 the equivalent of discrimination against women.

The administration's position attracted relatively little attention the first time the case was argued. By the time of the second argument, after a summer of violent protests at clinics in Wichita, Kan., during which Roberts and other administration lawyers opposed the authority of a federal judge there to issue an injunction, the issue had become politically sensitive.

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 in Washington.

The spot opens with a scene of an abortion clinic in Birmingham, Ala., that was bombed 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. The narrator says: "Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber."

The ad concludes by urging viewers to "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."

The imagery is "especially misleading" in linking the 1998 clinic bombing to the brief Roberts signed seven years earlier, Factcheck said in an analysis it posted on its Web site, www.factcheck.org, under the heading: "NARAL Falsely Accuses Supreme Court Nominee Roberts."

NARAL's president, Nancy Keenan, defended the ad during an interview in her office here.

"It's tough and it's accurate," she said. "It has done exactly what we expected it to do," which she said is to serve as a "wake-up call" about the stakes for reproductive freedom at issue in the court vacancy.

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