Roberts and Roe

Recently, I appeared on O'Reilly to discuss the big flap about NARAL's ad opposing the confirmation of John Roberts. I went prepared to talk about the several areas of concern about Roberts' record on reproductive rights and access to reproductive health care. But because the ad centers on his role in one particular case involving violence against a clinic where abortions were performed, I was immediately transported to a memory that for me is a classic example of how the political very quickly becomes the personal.

It was 6 a.m. on a Saturday morning. The Phoenix weather report, as usual, predicted a sunny and hot day. You could already feel the heat rising, along with the electric energy of the people beginning to arrive and take their places.

Staff went into the health center to prepare for patients. The volunteers divided into two groups. Patient escorts donned bright orange vests and gathered near the entrance to the parking lot. The others grabbed their coffee from the office that had been turned into volunteer central and situated themselves around the perimeter of the building.

As CEO of the local Planned Parenthood affiliate at the time, I moved between all those places. Among the volunteers were board members, friends, family and activists who had answered the call, and an extraordinary number of individuals who had simply shown up offering to help. There were clergy who felt a moral obligation to be present wearing their collars, college students energized by the chance to defend their principles, men and women from all walks of life, and even a couple of burly guys who owned a security company and volunteered their services. Even my dentist came with his video camera to record the events of the day.

We all made a point of arriving early enough to form a circle of support for the women who would be coming for birth control or abortion that morning -- a circle that would form a human barrier to the Operation Rescue (OR) demonstration we anticipated. Though they called it a demonstration, they sometimes invaded health facilities to try to shut them down and terrorize the people within. They had been known to glue locks shut and otherwise block access. We had to be prepared for anything. By our presence, we said, "You will not deny services to the women who need them."

The Phoenix police had traditionally been less concerned about OR's disruption of services than about the possibility of physical confrontation. In fact, the chief of police once advised me to close the center when we knew there would be a demonstration -- advice that we not only didn't take, but enlisted the support of city fathers and mothers to overrule.

However, on this day, the police's fear of fighting worked in our favor. Owing to the huge pro-choice contingency staking out the sidewalk first, the officers made OR demonstrate across the street.

I can't remember the exact date of this particular Saturday because there were so many Saturdays like it -- some more fraught with violence and harassment than others. I do know that during this era, Bray v. Alexandria Women's Health Clinic was wending its way to the U.S. Supreme Court, where John Roberts, the most recent nominee for that esteemed and critically important body, would argue on behalf of his client, President George H. W. Bush's Department of Justice. He argued against the rights of women to access reproductive health care -- and thus on behalf of anti-abortion protesters, including Operation Rescue and Michael Bray, who was previously convicted for involvement in a string of 10 clinic bombings.

My colleagues and I often discussed the fact that we were civil libertarians who supported free speech rights to picket peacefully. But we knew in our hearts and guts that the gathering storm of anti-choice assaults was not free speech -- it was hate speech at best and domestic terrorism at worst.

From 1977 to 2000, there were 675 blockades, 365 invasions, 322 death threats, 502 bomb threats, 112 assaults and batteries, 40 bombings, 16 attempted murders and 8 murders in the name of "life." I personally was stalked, picketed at home and subjected to death threats, in addition to enduring bomb and arson attempts, vandalism, and an invasion at the health centers for which I was responsible.

The year Bray was decided, 1991, was smack in the middle of this period. It was a pivotal time, before any murders had occurred. It was a moment of opportunity when the violence and harassment could have been de-escalated if law enforcement at all levels had joined together and taken strong stands against it.

One of the things I learned during this time was that local law enforcement takes many cues from the Justice Department, and further, that the Justice Department has a unique capacity to bring law enforcement at all levels together, to enhance the effectiveness of local law enforcement when it is overwhelmed by massive actions like OR. They can proactively set a pattern of enforcing the law and keeping the peace.

Instead, the Bush I justice department -- with Ken Starr as its chief litigator and John Roberts as his top deputy, strategist and chief arguer -- did no such thing. Indeed, they chose to do just the opposite.

They chose to file an amicus brief when they could have remained silent in the case or to file on behalf of the clinic. The Solicitor General has broad discretion regarding whether to intervene in any case.

They chose to side with an organization with a history of violence and lawbreaking and a convicted bomber, when they could have sided with the reproductive health clinics who were abiding by the law and are equally convinced of the righteousness of their cause and entitled to freedom of speech.

They chose to make the argument that regardless of whether gender discrimination was covered by the Ku Klux Klan Act at issue, clinic blockades were not gender discrimination. The brief says that even if the act was "broad enough to reach gender-based animus, the actions taken by the petitioners are not a form of gender-based discrimination."

Though Roberts says he was merely arguing on behalf of the administration's position, in the end that is an inexcusable reason. He appeared twice before the Court to argue Bray, and appeared in the media to speak for his case. And though the case was decided 6-3 in favor of the protestors on a technicality concerning the law's applicability to this case, quotes from dissenting justices, including Sandra Day O'Connor, whose seat Roberts wants to fill, are telling.

Justice Stevens noted that Bray "presents a striking contemporary example of the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Klan Act in 1871 and gave it its name."

Justice Stevens also castigated the plaintiffs, saying, "[T]he demonstrations in the 1960's were motivated by a desire to extend the equal protection of the laws to all classes -- not to impose burdens on any disadvantaged class. ... The suggestion that there is an analogy between their struggle to achieve equality and these petitioners' concerted efforts to deny women equal access to a constitutionally protected privilege may have rhetorical appeal, but it is insupportable on the record before us."

Justice O'Connor compared Operation Rescue's behavior to the Ku Klux Klan itself, noting that "[l]ike the Klan conspiracies, Congress tried to reach in enacting §1985(3), '[p]etitioners intended to hinder a particular group in the exercise of their legal rights because of their membership in a specific class."

Am I saying then that John Roberts supports or condones violence? Of course not. (Nor, I contend, does NARAL's ad.) But I am saying that when he had a chance to weigh in and explicitly oppose the rising tide of violence that continued to escalate over the ensuing years, he did not. That is a serious question of character.

I am also saying he took the position he took for ideological reasons that may well color his future decisions regarding a whole host of gender-related issues, including the question of whether women will retain the human rights and civil liberties to make their own childbearing decisions.

We are entitled to know just exactly how the personal becomes the political for John Roberts. He is obligated to make his positions on these matters crystal clear, and should not be confirmed if he does not explicitly affirm the constitutional right to these fundamental freedoms.

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