Bench Memos

NARAL’s Lies

Even by the standards of the pro-abortion movement, the new television ad (which Kathryn links to here) that the group now calling itself NARAL Pro-Choice America has unleashed is particularly mendacious. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” NARAL’s press release disingenuously claims that “we are not suggesting Mr. Roberts condones or supports clinic violence” when that of course is exactly what its ad does.

A few comments: 1. The case in which Roberts submitted an amicus brief on behalf of the United States, Bray v. Alexandria Clinic, presented the question whether the Ku Klux Klan Act of 1871 provides a federal cause of action against persons obstructing access to abortion clinics. The particular provision at issue had long been construed to require showing of a “class-based, invidiously discriminatory animus.” Relying on precedent and logic, the Supreme Court easily determined that opposition to abortion does not reflect an animus against women as a class, “as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”

2. Roberts never “excuse[d] violence against other Americans.” There are plenty of laws that criminalize violence outside abortion clinics. Roberts never took any action to undermine any of them. It is NARAL that has the “ideology” that every law should be distorted to advance the cause of abortion.

3. Following the Bray decision, Congress enacted into law in 1994 the so-called FACE Act, which imposes far more comprehensive and severe penalties against those obstructing access to abortion clinics. The fact that this law failed to deter the 1998 bombing that injured the clinic worker featured in NARAL’s ad makes it all the more ludicrous to suggest that Roberts’s proper reading of the Ku Klux Klan Act of 1871 in 1991 is somehow responsible.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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