NARAL is understandably opposed to the nomination of John Roberts to the Supreme Court. This is perfectly understandable, since it is hardly implausible that he would vote to overturn Roe v. Wade. However, their enthusiasm has led them a bit astray. Their no-holds-barred approach led them to run an ad that, taken to its logical end, could set them at serious odds with the ACLU.
Here's what happened in 1989: John Roberts, as a solicitor for the GHW Bush administration, wrote an amicus brief stating that a federal law aimed at curbing Klan activities did not, as written, apply to abortion protestors. The law, passed in 1871 makes it a federal crime:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the lawsRoberts argued that Operation Rescue, in opposing the act of abortion, was not violating this particular law. His reasoning took two parts. The first was that since the original law was aimed at the KKK, it was therefore aimed at racial discrimination, not sex discrimination. This is bogus. Nowhere in the law, or at least the part that I read, does it exclude any class of persons from receiving 'equal privileges and immunities'. His second argument is the one that is, at least legally, defensible. He argued that the abortion protesters were uninterested in who was getting the abortions, but instead were opposed to the practice of abortion overall. Therefore while the effect of their protest might have been discriminatory towards women, their purpose was not depriving 'equal protection and immunities' to any specific group. Any pregnant men who showed up would have been equally protested. By a decision of six to three, the Supreme Court agreed with this second argument.
One of the litigants in this case was a convicted abortion bomber, Michael Bray. NARAL's ad indicates that arguing that a federal law does not apply to a protest amounted to supporting the protestors' violent actions. Specifically, they feature Emily Lyons, a nurse severely injured by one of Eric Rudolph's bombs in 1998. Now let me be the first to say a big "Fuck you!" to abortion bombers. However, stating that one federal law does not apply to an abortion protest is not the same as supporting anti-abortion violence. Indeed, there had been successful litigation against the protestors in state courts under state law in this case. All Roberts was doing was arguing that it wasn't shouldn't have been made a Federal case, under the specific law that they were citing.
It is worth considering what Roe v. Wade actually said, as well. It did not grant the right to get an abortion. It banned the government from the invasion of privacy that would be required to enforce an abortion ban. Therefore abortion protestors are not violating a right, as the right is not to the abortion itself but to not have the government interfere in such a private health decision. It is in this way that a civil-rights law cannot be applied to private protestors. This is not to say that state abortion-clinic access laws are invalid, and the existing state laws at the time were not invalidated by this decision.
Demonizing anyone who argues for the rights of those we oppose politically is shaky ground. Its part of what makes the ACLU's job so thankless. The ACLU has in fact supported Klan chapters' right to protest, and may someday represent anti-abortion groups in similar rights. If so, will NARAL demonize them, too, as supporters of violence and abortion-clinic bombings?
My point here is not that NARAL would actually turn on the ACLU. It is that an impartial lawyer will almost invariably have made a legal argument that benefits someone we don't like. This is the way of things if you're going to defend everyones' freedom. There's more than enough reason for NARAL to argue against Roberts simply based on his ambivalence to Roe v. Wade.