Questions For John Roberts

By Deborah Ellis
Wednesday, August 17, 2005

The furor over the recent NARAL Pro-Choice America ad about John Roberts and abortion clinics is unfortunate in that it obscures an important issue that raises serious questions: John Roberts's role as deputy solicitor general in the court case Bray v. Alexandria Women's Health Clinic. In that case, Roberts argued on the side of Operation Rescue for a narrow interpretation of one of our nation's civil rights laws.

The case was not about clinic bombings, lawful protest outside abortion clinics or even abortion rights. As Justice John Paul Stevens said in his 1993 dissenting opinion, the case was "about the exercise of Federal power to control an interstate conspiracy to commit illegal acts."

Why were these cases necessary? For a decade leading up to 1993, Operation Rescue and other national groups organized massive human blockades to forcibly prevent women from entering abortion clinics. This was a strategy designed to overwhelm small police forces so the blockaders could not be arrested. I argued in the Supreme Court on behalf of women's health clinics and female patients in the Bray case. We used a Reconstruction-era civil rights law to obtain protection from federal marshals so women could safely enter abortion clinics. The 1871 law was enacted for exactly this purpose: to prevent mobs from conspiring to take away the civil rights of newly freed slaves.

In the summer of 1991, during a particularly large blockade in Wichita, John Roberts went on national television to defend the government's decision under President George H.W. Bush to file a friend-of-the-court brief on the side of Operation Rescue. That brief asked a federal court to stay implementation of an injunction against the blockades that had already been issued. In contrast to Little Rock in 1957, when federal marshals protected African American children trying to integrate schools, Roberts argued that women should be left to whatever protection the states could provide, however inadequate.

To be fair, in Roberts's Supreme Court argument he pointed out that the Justice Department was defending the proper interpretation of the 1871 law, not Operation Rescue's unlawful conduct. But no courtroom caveat can erase the impact of the federal government's lending its weight on the side of the mob intent on stopping women from exercising a constitutional right. It was a devastating blow.

We will never know how much the Justice Department's position influenced the court's decision in the Bray case, which was lost on a close vote. One justice in the majority, Anthony Kennedy, was so concerned about women receiving the protection of federal law enforcement that he wrote a separate opinion suggesting alternative methods. Congress remedied this setback by passing the Freedom of Access to Clinic Entrances Act in 1994.

As with other controversial positions he took as a government lawyer, Roberts should be questioned about whether his particular arguments in Bray represent his own beliefs. More fundamentally, however, he should be asked what role he believes the federal government has in protecting civil rights and women's rights, particularly in the face of state recalcitrance or inadequate resources.

It goes too far to label Roberts as a fellow-traveler with Operation Rescue. But if he subscribes to such a crabbed view of federal civil rights authority that he would jeopardize the rights -- and even the safety -- of half the population, that distinction may not matter.

The writer is an assistant dean at the New York University School of Law. She represented the abortion clinics in Bray v. Alexandria Women's Health Clinic before the U.S. Supreme Court in 1992.


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