NARAL Pro-Choice America announced it would start running a new ad to
replace one that it yanked off the air Aug. 11 after widespread criticism.
Unlike the first ad, which falsely implied that Roberts had excused bombing
of abortion clinics, this one mostly gets it right.
The latest ad quotes accurately and in context from a 1981 memo in which
Roberts dismisses the notion that the Constitution spells out a right to
privacy,
notes his 1991 legal brief saying Roe v Wade was "wrongly decided," and
correctly quotes an editorial from USA Today raising questions about
Roberts' legal
record on privacy.
We have some small quibbles here and there - but overall judge this effort
to be much closer to the facts than NARAL's short-lived first ad.
Analysis
When NARAL pulled its first ad off the air Aug. 11, its spokesman promised
that a new ad would take its place the following Monday. Instead, the
spokesman
resigned and NARAL has been off the air for nearly two weeks.
NARAL Pro-Choice AmericaTV Ad: "Rights"
Announcer: Privacy...equality...the right to choose...
(On Screen: Images of young families, employees in the workplace)
Announcer: Fundamental freedoms Americans have cherished for generations.
But John Roberts dismisses one of our established liberties as the
"so-called
'right to privacy.'" And co-wrote a brief arguing that Roe vs. Wade should
be overruled. Roberts' legal record raises questions on whether he accepts
the
right to privacy.
(On screen: USA Today, August 15, 2005)
Announcer: There's just too much at stake to let John Roberts become a
decisive vote on the Supreme Court.
The latest ad takes a different tack, and was even produced by a different
ad firm. Where the first ad showed images of a bombed-out abortion clinic,
this
ad shows images of a happy, smiling families and a tender couple. And rather
than falsely implying that Roberts condones violence, this one mostly sticks
to the facts.
The latest ad is running only on CNN nationally and in the Washington DC
market on cable outlets, a NARAL spokesman said. The first ad also ran on
Maine
and Rhode Island broadcast stations, but not this one, at least for now.
"So-called" right?
The ad says Roberts "dismisses one of our established liberties as the
'so-called' right to privacy." And indeed, he did.
In a 1981 memo Roberts wrote to his boss Atty. Gen. William French Smith
(see "supporting documents) to summarize a lecture given by Harvard Law
School
Dean Erwin Griswold:
Block quote start
John Roberts, 1981: He (Griswold) devotes a section to the so-called "right
to privacy," arguing as we have that such an amorphous right is not to be
found
in the Constitution. He specifically criticizes Roe v. Wade.
Block quote end
The Republican National Committee instantly attacked the latest NARAL ad as
"false and disingenuous," claiming that "nothing in John Roberts record
suggests
his personal opinion on the right to privacy." We disagree. In this 1981
memo, Roberts says Griswold "argued as we have," not as "you " have. While
"we"
could refer either to the Attorney General's office generally or to the
Attorney General and Roberts personally, he indicated no disagreement with
the
position that the Constitution does not contain a right to privacy.
Roe v Wade
The ad also says that Roberts "co-wrote a brief arguing that Roe vs. Wade
should be overruled," which is also true. That was in 1991.
At the time Roberts was working in the Solicitor General's office and was
presenting the views of the administration of George H.W. Bush. So the
statement
that Roe was wrongly decided and should be overturned can't necessarily be
taken taken as his personal view. On a different occasion, he testified that
he considered Roe to be "the settled law of the land." That was in 2003,
when he was up for Senate confirmation to a seat on the US Court of Appeals.
Nevertheless, NARAL's ad accurately quotes what Roberts wrote about
overturning Roe. We don't know whether Roberts would vote to overturn Roe or
not, and
we don't expect him to say one way or the other. But what he wrote in 1991
is as good a clue as any.
USA Today Quote
The ad quotes a USA Today editorial saying Roberts' "legal record raises
questions on whether he accepts the right to privacy." The quote is accurate
and
in context. The editorial also said:
Block quote start
USA Today Editorial, Aug. 16, 2005: President Bush's nomination of John
Roberts to the Supreme Court may soon call into question whether privacy
rights
exist. . . . Roberts' record on the issue is scanty, but legal briefs he
worked on and memos he wrote raise questions as to whether he accepts
current
law on privacy.
Block quote end
We would add only that questioning a Constitutional right to privacy is
nothing new. Legal thinkers have disagreed about that since at least 1890,
when
a famous article in the Harvard Law Review argued that many of the
Constitution's amendments have the effect of establishing "a more general
right of the
individual to be let alone." Still, unlike many other rights, "the
Constitution does not explicitly mention any right of privacy," the Court's
decision
in Roe v. Wade points out.
The Supreme Court, beginning in a case in 1891 and especially since the
1960s, has recognized that there may be zones of privacy in certain
instances. In
Griswold v. Connecticut, for example, the Court invoked a "right of privacy"
in ruling that the state cannot make it illegal for married couples to use
contraceptives. The court has addressed the "right to privacy" in a wide
range of cases dealing with illegal searches in schools, random drug
testing,
and the government's ability to access personal information.
"Decisive Vote"
NARAL's latest ad concludes by saying, "There's just too much at stake to
let John Roberts become a decisive vote on the Supreme Court." That could be
misleading.
It is true that Roberts' vote on the court could be "decisive" on many
issues, but almost certainly not on the question of legal abortions that is
central
to NARAL's concerns.
If confirmed, Roberts would replace Justice Sandra Day O'Connor, whose vote
has been the deciding one in many close decisions. Since 1994, when Justice
Stephen Breyer rounded out the Court's current line-up, we count 149
decisions in which the court voted 5-4 with O'Connor in the majority.
Roberts could prove decisive on two questions regarding abortion, according
to the National Right to Life Committee: upholding state laws that require
parents
be notified before a minor can obtain an abortion, and on upholding certain
state laws against certain late-term abortions characterized by opponents as
"partial birth" abortions. However, as we've pointed out
before ,
only three current Justices have in the past voted to overturn Roe v Wade
and send decisions about legality of abortions in general back to state
legislatures.
Even if Roberts sided with those three - Justices Rehnquist, Scalia and
Thomas - the court would still be one vote shy of the five needed to
overturn Roe.
Furthermore, aside from her stand on abortion, O'Connor's record is more
conservative than liberal. Statistically, since joining the court in 1981,
she
sided most frequently with Chief Justice William Rehnquist, doing so 82
percent of the time. She sided least often - only 57 percent of the time -
with
Justice John Paul Stevens.
-By Brooks Jackson, with Matthew Barge and Jennifer L. Ernst.
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