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NARAL Round 2: No Distortion Here

The abortion-rights groupís latest ad takes issue with Judge Roberts on whether the Constitution contains a right to privacy.

August 26, 2005

Modified: August 26, 2005

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Summary

 

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:

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.

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 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:

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.

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.

Sources

 

"NARAL Continues False and Disingenuous Attacks on Judge Roberts," Press Release, Republican National Committee, 26 August 2005

Will Roberts leave you alone?,” Editorial , USA Today, 15 August 2005

John Roberts, Memorandum to the Attorney General re: Erin Griswold Correspondence, 11 December 1981

Rust v. Sullivan  , U.S. Supreme Court, 500 U.S. 173, 1991

Samuel Warren and Louis D. Brandeis, " The Right to Privacy ," 4 Harvard Law Review 193, 1980

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