Abortion

What happened? In a nutshell, Roberts’ record happened. The release of documents from the Ronald Reagan library have shed light on Roberts’ time as associate counsel to Reagan and as deputy solicitor general under Kenneth Starr during the Reagan and first Bush administrations. We’ve now been able to read Roberts’ writings on the subject of equal pay for women for jobs of “comparable value,” which he called in a 1984 memo “a radical redistributive concept.” There is his repeated use of the term “so-called” with regard to the right to privacy. He also writes of the “purported gender gap,” and “perceived problems of gender discrimination.” In the early 1990s, Roberts voluntarily argued for the government in front of the Supreme Court on the side of abortion clinic protesters in the Bray v. Alexandria Women’s Health Clinic case. And in a 1985 memo he made a crack about housewives becoming lawyers that may have been a housewife joke, or may have been a lawyer joke, but either way was not a knee-slapper.

Before the Roberts record began to embolden progressives to take a strong stand against the nominee, some pro-choice groups were alone in fiercely opposing him, and NARAL’s stumble earned them the back of the hand from some (mostly male) Democrats. The popular blogger Daily Kos (Markos Moulitsas Zuniga) enraged feminist bloggers like Jessica Valenti (Feministing) and Amanda Marcotte (Pandagon) when he blogged, in the midst of the NARAL fuss, not about the ad, but about his frustrations with NARAL’s “single issue” politics, and their single-minded devotion to what he called a “pet cause.”

The dust-up exposed an ever-deepening fracture in the Democratic Party over how important abortion rights should be. It’s come up in the debate over the Senate candidacy of Pennsylvania state treasurer Bob Casey Jr., who some Democrats think would be the strongest opponent to conservative Sen. Rick Santorum, even though Casey is anti-abortion. It’s also emerged in a smaller-arena quarrel between Frances Kissling of Catholics for Free Choice and the Democrats’ new religious guru Jim Wallis of Sojourners, especially after Wallis endorsed some limits on abortion in a recent New York Times Op-Ed.

The new comity over the Roberts nomination in progressive circles, and the growing consensus about opposing him, may demonstrate that liberals can fight these battles and still emerge united. That’s good, because these battles are not going away.

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Women’s groups and other progressive legal advocates have been gearing up for a fight over a new Supreme Court nominee since the last Bush term. But a loose coalition of women’s organizations went into overdrive when, instead of the expected announcement that Chief Justice William Rehnquist would retire at the end of this session, we learned on July 1 that Sandra Day O’Connor would be stepping down. “That was a pivotal moment because she was the swing vote,” said Karen Pearl, interim president of Planned Parenthood Federation of America. “Not on Roe per se, but on keeping Roe solid without it being slowly eviscerated. So we have cared very deeply about who replaces her.”

A couple of weeks of speculation — with hopeful guesses that Bush might pick a woman, a minority or a moderate as an olive branch to those fuming over the Rove-Plame leak — finally ended with the announcement on the evening of Tuesday, July 19, that conservative white-guy John Roberts would be the nominee.

The reproductive rights institutions were ready to move. Groups like the National Organization for Women, NARAL Pro-Choice America, the Feminist Majority, the National Abortion Federation, and the National Latina Institute for Reproductive Health were quick to voice their opposition to Roberts. They planned rallies, press conferences and call-in days, and urged their constituents to voice their concerns over Roberts to their senators.

At 9 on the morning of the 20th, an e-mail went out from NARAL Pro-Choice New York announcing a “Rally to Save the Court” that afternoon. “This is it,” read the e-mail. “Judge John Roberts Jr. has been nominated by President Bush … His nomination to the courts will be putting a woman’s right to choose in extreme jeopardy.” Two days later, there was a NOW rally outside New York Gov. George Pataki’s office. The press release said that speakers would urge Pataki not to veto emergency contraception legislation and “voice their opposition to President Bush’s anti-choice Supreme Court nominee, John Roberts.” The rallies weren’t huge. But they’d happened fast, and the early days of debate about Roberts seemed to buzz with an urgent energy and snap that had been notably absent on the left.

Kate Michelman, former president of NARAL, agreed that the speed of initial reaction was a sign of strength and agility, even in the first days, when we had little information about Roberts other than his reputation as a super-nice conservative guy. “The message that had to be sent was, ‘Please don’t rush to judgment here,’” said Michelman. “We had to act immediately and alert Americans that even given all the praise for Judge Roberts’ integrity and his personal character, there are also his views and his work and they raise concerns.”

The earliest concerns about Roberts’ available record were raised over his co-authorship of a brief as deputy solicitor general in the 1991 Rust v. Sullivan case that prohibited federally aided domestic family-planning programs from giving abortion-related counseling. In his brief, Roberts had argued that we “continue to believe that Roe was wrongly decided and should be overruled … The Court’s conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure, or history of the Constitution.” There was also the revelation that Roberts’ wife had a strong connection to a group called Feminists for Life, a fact that should have no impact on his suitability for the court, but which set off alarm bells for reproductive rights activists. Still, Roberts was something of a cipher, and reactions to his nomination from moderate Democrats were not negative.

The Democratic divide over Roberts was best symbolized in the different reactions from California’s two female senators. Barbara Boxer immediately voiced suspicions about Roberts, while her colleague Dianne Feinstein shrugged off his nomination. “Do I believe this is a filibuster-able nominee? The answer would be no, not at this time I don’t,” said Feinstein, an abortion-rights supporter and member of the Judiciary Committee. The rift between these two women seemed to demonstrate the growing divide between those on the left for whom reproductive rights are the litmus test for a court nominee, and those who might be prepared to take a gamble on them.

Elsewhere, Democratic leader Sen. Harry Reid of Nevada (who is not pro-choice) said that he “would not prejudge this nomination.” In New York, Sen. Charles Schumer was publicly skeptical about the judge while Sen. Hillary Clinton remained mum. Even some major progressive groups like People for the American Way and the Alliance for Justice withheld judgment. They were joined by Planned Parenthood, one of the only major reproductive health groups to adopt a wait-and-see attitude.

PPFA president Karen Pearl explained her organization’s forbearance by phone, saying that it was initially difficult to tell from Roberts’ records whether his own ideology, or that of his employers’, was on display. “When people write materials for their boss they are being good staff people and not necessarily showing their own beliefs,” said Pearl.

Most of the groups who chose not to oppose Roberts openly argued, like Pearl, that it was the responsibility of progressives to weigh the facts before making measured arguments that would stand up under scrutiny. There was also, it seemed, a waiting period during which some organizations weighed the costs of fighting what could very well be a losing battle: Did they want to spend energy and money fighting a candidate who would probably wind up appointed to the court? Frances Kissling, head of Catholics for Free Choice, said, “It’s a real problem in advocacy work: It is so very important and yet so clear that you are unlikely to prevail. How to position yourself is very hard.”

But at least one of the major reproductive rights advocacy groups had some very strong ideas about how to position themselves. Two weeks after the nomination, NARAL, the leader of the anti-Roberts pack, produced its gruesome 30-second television spot showing a Birmingham clinic bombed in 1998. The unsubtle message of the ad was that Roberts’ arguments in the 1991 Bray case were in fact arguments on behalf of clinic bombers. A voice-over urged viewers to call their senators and tell them to oppose Roberts because “we can’t afford a justice whose ideology leads him to excuse violence against other Americans.”

The ad could not have been considered measured. The Birmingham clinic had been bombed seven years after Roberts’ briefs in Bray; his argument was not in support of bombers, but about the interpretation of a federal law that prevented protesters from blocking access to abortion clinics. The NARAL message was manipulated and imprecise in a way that was reminiscent of the Swift Boat Veterans ad that had brutally wounded John Kerry’s 2004 campaign. But where the right had been recalcitrant in its denunciation of its own alarmist propaganda, the left (and center) did not waste any time in condemning NARAL. Independent watchdog Factcheck.org branded the ad “false,” while Bill Clinton’s former Solicitor General Walter Dellinger III called it “unfair.” Pro-choice Republican and Senate Judiciary chairman Arlen Specter wrote NARAL president Nancy Keenan a letter calling the ad “blatantly untrue” and asking her to pull it. Even Karen Finney, communications director for the Democratic National Committee, said, “We would have done the ad differently.”

NARAL pulled the ad. Soon after came the announcement that the organization and its communications director, David Seldin, would be parting ways.

NARAL was in big trouble. David Garrow, legal historian and author of “Liberty and Sexuality: The Right to Privacy and the Making of Roe V. Wade,” said that given that Roberts is likely to be confirmed, “the most significant upshot of this whole nomination and confirmation process may be how serious a self-inflicted wound NARAL has suffered.” He continued, “Many committed and experienced pro-choicers were outraged by the NARAL ad: Fran [Kissling], Walter [Dellinger], me, and plenty of others. My fear is that the depth of the reputational damage is such that it could not be cured by [NARAL president] Nancy Keenan’s resignation or firing.”

NARAL did not return calls for comment on this story. Kate Michelman, who stepped down last year after nearly 20 years as NARAL’s president, would not comment on the ad except to say that “NARAL did the right thing in removing” it. “When you engage in a strategy and you realize that the strategy is not accomplishing your mission, you change strategies,” she said.

However, NARAL’s whopper of a strategical error didn’t just imperil the group’s own mission, but the position of other pro-choice advocates and women’s groups. Tripping over themselves to criticize NARAL, moderates and progressives who were perhaps frustrated with the tactics of reproductive rights groups in general now had an excuse and an opportunity to vent their spleen.

In the Times, columnist John Tierney wrote a piece titled “Pro-Choice but Anti-Naral,” in which he railed against the organization’s commitment to making abortion a civil rights issue. “The tactic makes for displays of solidarity like the March for Women’s Lives, an occasion for denouncing male anti-abortion politicians and waving signs with that perennial slogan ‘If men got pregnant, abortion would be a sacrament,’” he wrote. It was clear that Tierney was not simply angry about the ad, but about his perceptions of the women’s rights movement as loud and emasculating; he painted them as damaging the greater good.

Nowhere was the desire to kick NARAL and its sisters while they were down clearer than on the increasingly heated, and male dominated, political blogosphere, where popular lefty blogger DailyKos used the ad dust-up as an excuse to vent his larger frustrations with NARAL for endorsing politicians solely because of their stands on abortion rights. “Until NARAL (and the rest of the single-issue groups) understand that building a movement is more beneficial to their causes than singular devotion to their pet causes, I can’t take them seriously,” he wrote on Aug. 9, the day after NARAL released its ad.

Referring to reproductive rights as a “single issue” and a “pet cause” did not go over well with some of Kos’ peers, including Jessica Valenti of Feministing. “I think that that attitude about reproductive rights groups has been the case for a long time,” Valenti said by phone. “You would think they would feel shameful of being completely flat-out dismissive of women’s rights, but they have no shame.” Valenti said she was depressed about the rancor toward women’s issues she felt coming from the broader left. “You feel like at the end of the day these [fellow progressives] are on your side at least. Then it turns out at the end of the day they’re going to be like, ‘Oh, fuck abortion.’”

Reached for comment about his remarks, Kos’ Markos Moulitsas Zuniga was clear that he never weighed in on the ad itself. His beef with what he calls “single-issue groups” like NARAL is “with the insistence that their issue be … the most important issue on the face of the planet. That is what’s killing us.” Moulitsas, who said that he’d completed a chapter on the pro-choice movement for his upcoming book the night before, professed not to have much of an opinion about the NARAL ad and its aftermath. “I saw the whole controversy about it but I never paid much attention,” he said, adding that “whether [the ad] was truthful or not, that’s something NARAL has every right to be doing. Its mission is to protect abortion rights and the Supreme Court is the front line.” But he said that mostly, the kerfuffle had provided him with “a segue into my other rant.”

That was precisely the problem. In taking such a major fall, NARAL had revealed a weak spot that could be exploited by opponents and critics from every edge of the political spectrum. “Coming out against NARAL so strongly was completely out of hand,” said Amanda Marcotte, a blogger from Austin, Texas, who maintains the Pandagon site. “It spoke to me of a certain willingness on the part of certain so-called moderate liberals, left of center, all men, their willingness to throw out women’s rights if they could win an election by doing that. They’d use the word ‘compromise,’ of course.”

Afraid that reporters would ask them about the touchy subject of the ad, movement leaders seemed reluctant to keep up their high-volume questions about Roberts. And the unspoken message coming from the critical left was that women should stifle it for a while. “It put a damper on the debate,” said Kissling.

PPFA’s Pearl saw things differently. “I didn’t see that as a period of enforced silence so much as the beginning of the August recess,” she said. “We never ever felt any pressure to be quiet and we haven’t been.”

Michelman, meanwhile, agreed with Kissling, and conceded that the public whomping of her former organization had caused “a little slowdown” in the public conversation about Roberts. “But that was not a bad thing,” she added. “At that moment, we needed to clear the air a little. And I think that’s exactly what happened.” She also pointed out that the lull “didn’t last long. The information coming out now is vital. The process is unfolding in a careful way and it’s very important that we don’t slow that process down now.”

In recent days, reproductive rights groups look to be making something of a comeback. Most sources agree that this is because of the new things we’re learning about Roberts following the release of his records from the Reagan Library. Yet blogger Marcotte said she thinks the tide has turned back in part because, “On both pro and anti-NARAL sides of the left, everyone wants to see abortion stay legal. That’s the weird thing. Also, [some people] sat on it and thought about it for a while and realized we were right.”

On Aug. 19, NOW president Kim Gandy posted a letter to constituents. “I just have to say a few words about the recent revelations of misogyny from Bush’s nominee to the Supreme Court, John G. Roberts,” wrote Gandy. “We’ve opposed his nomination from the beginning. But the recent documents … demonstrate vividly his contempt for women and for equal treatment.” Gandy, who criticized NARAL’s pulling of the ad on Fox’s “Hannity & Colmes,” concludes her message with a triumphant, “We were right all along.”

Adding to the momentum this week was the news that progressive stalwart People for the American Way had decided to formally oppose Roberts’ nomination. And there was the surprise assertion from Sen. Feinstein that she is concerned about Roberts’ attitudes about Roe, and intends to grill him on the topic during the hearings. This news was particularly heartening to Michelman, who called the senator “a bellwether in some regard. She’s very important — because of [her role on] the Senate Judiciary Committee, because she’s a moderate, because she informs other people’s thinking and she leads when she speaks. I think it’s a regrouping right now, but there is a slow but steady growing focus on this man’s record. I don’t care how the other side tries to portray it. His opposition to equal pay for women and some of these other things are astonishing.”

Other women’s rights group leaders also sounded, if not hopeful, then at least more upbeat about the growing stream of questions and concerns about the judge. Crystal Plati, head of ChoiceUSA, said that her organization has not taken a public stand against Roberts, but that “internally” they oppose the appointment. “There’s more we know now about how he has taken stances that are harmful to women’s civil rights and equal pay for equal work,” she said. Plati also pointed out that the fact that “we are not getting the documents we need from the White House,” regarding Roberts’ reasons for voluntarily taking a role in the Bray case, “makes us uncomfortable.”

Vicki Saporta, president of the National Abortion Federation, said succinctly, “We opposed Roberts when he was nominated to the lower court, and we opposed him when he was nominated to the Supreme Court. Subsequently we’ve learned about his views on ‘so-called’ privacy.” Saporta explained the evolution of the public discourse on Roberts this way: “He didn’t have a huge judicial record and so I think some groups, although they were gravely concerned, were waiting for some of the information that has been released in recent weeks.” She said she believed that “in the next two weeks you’ll see the rest of the [women's rights] community come out against him, some before the hearings and some during.”

“Sometimes the momentum takes a while to get going,” said Saporta. “But the crescendo will build.”

Kissling agreed that the movement is recovering from what she called “the NARAL fiasco” and is now back on track. She said that one of the lasting lessons of the summer’s rocky ride has been that advocacy groups “are going to have to make a strong, factual, intellectual case and that’s how it’s going to be decided.” She said she thinks “groups now have a better handle on the fact that that’s what they have to do, and they have more information available to them to make that case. It’s not going to be easy. It’s probably not going to be successful.” As for her own organization, Kissling said they have not taken a public stand on Roberts. “We probably will at some point,” she said, adding that she’s not sure that it would matter. “We’re not a big constituency-based organization. So with all humility, I don’t think there’s a single senator who cares whether we do or don’t.”

Michelman offered a different summation of the ups and downs of this debate, pointing out that advocacy groups face a political landscape that has wholly mutated from the one they faced in the Bork and Scalia debates of the ’80s. “This is a new political environment, and it’s important to understand that it takes a bit of time to find the right footing,” she said. Michelman also pointed out that several of the reproductive rights leaders — like Nancy Keenan who replaced her only last year, and Karen Pearl, who replaced Gloria Feldt early in 2005 — are new to the battle.

“The challenge,” said Michelman, “has been to get all of this organized and in sync. This is an experienced coalition in many ways, but in reproductive rights leadership, the leaders are new.” Michelman said she believes that leaders are made in part by rising to difficult occasions, which is something her successor Keenan has certainly had to do this summer. “That is what new leadership must do and will do,” she said. “There’s no question it’s had a rough start. But that doesn’t mean that it won’t achieve its goals over the next weeks: to educate and alert the public to the threat that, based on Judge Roberts’ views, reproductive rights, among other rights, are at risk.”

And even Planned Parenthood, which has still not followed in the footsteps of PFAW in formally opposing Roberts, is getting more aggressive in its language about him. On a Thursday call-in press conference, Pearl opened proceedings by saying, “To give you an idea of where Planned Parenthood currently stands on the Roberts nomination, we have growing concerns as the evidence mounts that John Roberts is not someone who necessarily believes in the right to privacy or who will necessarily protect women’s health and safety.” Later in the call, in answer to a direct question from another reporter about PPFA’s stance, Pearl said, “He needs to clarify his record and we need to know where we stands, but we will absolutely oppose him if he is not ready to provide that clarity.”

As the movement regroups and regains its confidence, perhaps there will even be a new light cast on that damned ad. While it certainly has not been redeemed, on the Planned Parenthood call, Deborah Ellis, the lawyer who represented abortion providers in the Bray v. Alexandria Women’s Health Clinic case, acknowledged that “some of you have heard about this case because of a NARAL ad that was aired.” She continued, “I think that though the ad was misleading, that should not obscure some of the real questions that John Roberts’ role in that case should raise for all of us.”

“I think the women’s rights community has a lot at stake here,” Michelman added. “We got off to a bit of rough start, but we’re back on track and the whole coalition is now preparing to do this massive public education if it need be.”