The United States' Position in Bray v. Alexandria Women's Health Clinic:

Recall that this is the case in which abortion clinics and abortion rights organizations sought an injunction against anti-abortion trespassers. The federal government filed a friend of the court brief arguing that the federal civil rights statute didn't apply to this behavior, and that the behavior was properly punished by state criminal law and tort law. (For more on the legal issue, read the Court's opinion.) John Roberts cosigned the brief, and delivered the government's oral argument.

I thought I'd add one detail, though, that people haven't noted: Not only was the government's position -- the one that Roberts is faulted for arguing -- accepted by six of the nine Justices, those six included two Justices who voted in favor of recognizing abortion rights in Casey v. Planned Parenthood. Justice Kennedy signed on to the majority opinion in its entirety. Justice Souter agreed with the majority on the issue that had been briefed by the government, but dissented in part because he thought another issue -- which the government's brief and oral argument, as best I can tell, had never addressed -- might be a winner for the plaintiffs. (The majority thought this separate issue hadn't even been presented below; Justice Souter argued that it had been adequately raised; but the government apparently didn't think it was in play, and therefore didn't address it.)

Whether this particular federal statute, as interpreted by the Supreme Court over many decades, should be read as barring illegal private interference with abortion rights, is a contested question -- the Court did split 6-3 on it (Justices Blackmun, Stevens, and O'Connor were in the dissent, Rehnquist, White, Scalia, Kennedy, Souter, and Thomas in the majority). But, as others have pointed out, one can certainly oppose criminal trespass and obstruction of entrances and yet think that this is a matter for state law, not federal law as written in the 1870s and interpreted by the Court since. And it's quite clear that this is an eminently mainstream position, taken by centrists and liberals Justices (e.g., Justices White and Souter) as well as conservatives, and by pro-abortion-rights people (e.g., Justices Kennedy and Souter) as well as by people who believe the Constitution does not secure abortion rights.

bill-10k (mail) (www):
Using reason is a sure sign you will fail. You are arguing with your mind, they are arguing with their feelings. Their world has collasped to the point they see nothing, hear nothing, borking Roberts is all that matters.

IMHO: Tying the abortion protestors to the KKK was a strategic play. It failed. The SC was obviously smart enough to see through the ruse.

Me, I am walking around with shields on high and skipping the arguments altogether :)

I had a bad experiance this AM.
8.10.2005 2:35pm
aslanfan (mail):
One other related point that explains why Roberts and his colleagues would "go out of their way" to participate in the case: As explained in the brief's statement of interest, the clinic argued that opposition to abortion constituted gender-based animus that triggered equal protection and due process scrutiny. Had this argument been successful, it would have implicated a number of federal laws (e.g. funding restrictions). The brief probably would have been filed in any case raising the gender animus issue, whether or not it involved Operation Rescue or protestors generally.
8.10.2005 3:26pm
MJ (mail):
The worst part about ads like this is that they take 30 seconds to put out a false but simple message, yet it takes a good 10 minutes to try and explain to someone why the message is not only not true, but deliberately calculated to mislead.

Truly, truly, Orwellianly despicable stuff from NARAL. It would be nice to see media outlets like the NYT, WaPo and CNN (who has agreed to run the ad) spend even an ounce of energy analyzing this ad. But I guess that would be asking for too much.
8.10.2005 3:27pm
Rough Justice (mail):
To Mr. MJ:

Willie Horton to you, sir! If you don't like 30 second political ads, then maybe they should be outlawed. The pro-Roberts crowd has the change to run their 30 second distortion ads as well. I think the media and advertising corporations would object to your objections. I believe in truth in advertising too, but how do you expect to get that from a bunch of greedy, unethical businessmen and equally slimey politicians?
8.10.2005 3:37pm
MJ (mail):

I think the Willie Horton ad was shameful, and, as I recall, was critically analyzed by the MSM. No?

I'm not saying that such ads should be outlawed, only that people should exercise some discretion and stick to facts rather than innuendo and misdirection. Your answer to answer the ad with an equally propagandistic ad is simply rooting for a race to the bottom.
8.10.2005 4:17pm
David M. Nieporent (www):
The Willie Horton ad was as incomplete as any 30 second ad, but at least it didn't suggest that Dukakis approved of Horton's behavior. The message was "Dukakis is a liberal who is too soft on criminals, and bad things happen as a result." That's not an unreasonable message. The message here is "Roberts condones abortion clinic bombings," which is completely false. That's an unreasonable message.
8.10.2005 6:00pm
Rough Justice (mail):
Mr. Nieporent:

I know that I'm rehashing old news, but you started it. The "Willie Horton" ads were disgusting, racist scare tactics drummed up in the sick mind of one of Bush Senior's henchmen. It's appalling that you find ANY justification for it. Btw, I have on good advice that Mr. Horton now bathes and shaves daily, and frequently wears stylish suits and ties to work. He's indistinguishable from your commonplace lawyer or businessman. He's turned over a new leaf, thank heavens.
8.10.2005 7:20pm
Charles Iragui:
I only wonder whether, possibly, NARAL itself believes what it is saying.

The Horton ads were seemingly intended to appeal to race fears (as well as fear of crime in the midst of a crimewave) but they were referring to a real sequence of events. The comparison therefore is inexact: the purveyors of the Horton ads believed them to be damaging but accurate.

It is a dark day if people openly justify deceit because it advances the cause.
8.10.2005 7:56pm
aslanfan (mail):
Rough J -- If memory serve, Gore was the first to exploit the Willie Horton tragedy, in the primaries, no? Does he have a sick mind too?
8.10.2005 11:35pm
Nieporent - so "push polling" questions of voter opinion IF McCain was the father of an out-of-wedlock African-American is OK because (A) it's not completely false, or (B) because he IS the father of an Asian-born child born to a woman other than his wife (the adopted daughter's birth mother)?

It's all bad. It's all disgusting. I just can't tell whether this is the left's warning about the treatment a clearly "conservative" nominee would get, or the effect of being spooled up in the assumption any nominee must be so.
8.11.2005 10:32am
roy solomon (mail):
I don't want the media outlets to decide for me which ads I see. There are plenty of places to get independent analysis. has taken it's shot, as well as here.

Lou Dobbs took it apart on CNN last night, and concluded it was reprehensible.
8.11.2005 10:55am