Much has been written in the last few days about John Roberts’s involvement in Bray v. Alexandria Women’s Health Clinic, where he participated on the same side as Operation Rescue and other extremists in a brief and oral arguments for the government before the Supreme Court. For our comments on that, see our earlier post. Little attention has been paid, however, to another clinic case involving Roberts during the same period – one in Wichita, Kansas.
In Wichita during a six-week period in the summer of 1991, abortion clinics were the targets of mob blockades organized by Operation Rescue. A federal district judge found that hundreds and perhaps thousands of people blocked access to clinics there, overwhelming the resources of the city’s police forces. Overall, there were over 2,741 arrests. (The facts are described in the district court decision in Women’s Health Care Services v. Operation Rescue.) Using the same federal law at issue in the Bray case, the judge issued an injunction to stop the massive blockades and called in some 100 federal marshals. This was not peaceful protest protected by the right of free speech. Only with the federal court’s order and the presence of the U.S. marshals was order restored.
So where does John Roberts come in? The U.S. government, around the same time, had decided to weigh in on the side of Operation Rescue in the Bray case, which involved a clinic in Alexandria, Virginia. That’s the case John Roberts argued for the first Bush administration. But the government took another step and appeared as a “friend of the court” in the Wichita case, too. The Wichita Eagle has reported that the decision to file a brief in Wichita was under Roberts’s direction, and it was reported at the time (Phila. Inquirer, Aug. 8, 1991) that Roberts acknowledged he participated in the decision to intervene in Wichita.
Attaching a copy of the government’s Supreme Court brief in the Bray case saying there was no violation of federal law (the brief that Roberts co-authored), the Justice Department asked the judge to stay the injunction while the case went up on appeal – again, siding with Operation Rescue and the perpetrators of the mayhem at the clinics. This request would have meant lifting the court’s order immediately, and calling off the federal marshals. Chaos would have ensued if that position had prevailed.
You don’t have to take our word for this. The federal judge in Wichita was outraged. He not only denied the motion for a stay and kept the injunction (and marshals) in place, he lashed out at the Administration. In a broadcast of the MacNeil/Lehrer NewsHour on August 7, 1991, he is quoted as saying, “If these marshals are removed . . . there will be bloodshed, and it’s just ludicrous to believe that somehow our government puts an imprimatur and agrees to that.” In the same broadcast, John Roberts appeared and defended the Justice Department’s intervention in Wichita, said that the idea that there would be mayhem and violence is “absurd,” insisted that federal law did not apply, and asserted that the victims of the mob violence could just “repair to state court.” He never explained why he dismissed the concerns expressed by the judge who had heard the evidence first hand.
At the very time the U.S. government inserted itself in the Wichita case, at that highly volatile moment, to support Operation Rescue and ask to lift the court’s order, many courts around the country had relied on the same federal law to keep the peace at clinics. The Justice Department could have kept out of the Wichita case altogether – or it could have weighed in to support the federal injunction. In fact, in April 1993 (during the Clinton Administration), when the Wichita injunction went up on appeal to the 10th Circuit, the Justice Department filed a brief asking that it be upheld. Even though the Supreme Court had decided the Bray case by then, Justice Department argued that there was still room under the law to maintain the Wichita injunction – both on a ground the Supreme Court majority hadn’t addressed in Bray, and based on evidence that was different from the record in Bray, which showed that in Wichita, Operation Rescue was targeting all women (and not men), not just those seeking abortion.
Bottom line: John Roberts needs to explain his role in putting the U.S. government on the Operation Rescue and clinic blockaders not only in the Bray case in the Supreme Court, but in the Wichita case as well. And internal documents from the Solicitor General’s office that could shed light on his role should be made available to the Senate and the public.
And now a Postscript about the Bray case: some commentators have erroneously referred to what happened there as peaceful protest, protected by the First Amendment. As we noted above, the Wichita events were nothing of the kind. The same is true of the Alexandria events at issue in Bray. The Operation Rescue activities there were described by Alexandria’s City Manager as “military-style assaults” on the clinics (he said this in an amicus brief in the case, and in testimony in support of new federal legislation after Bray was decided). He testified, for example, that one police officer had his eye socket fractured as the overwhelmed local authorities tried to remove the mob and free up access to the facility. This was not exactly peaceful, lawful protest.
