Attack: Roberts is pro-life.
Opponents will undoubtedly argue that Roberts is hostile to abortion rights based on a pair of briefs on which Roberts appeared while Deputy SG (a) Rust v. Sullivan and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). Roberts’ opponents have argued that Roberts unnecessarily called for the Supreme Court to overturn Roe v. Wade in Rust, a case challenging federal regulations which prohibited certain receipients of federal funds from counseling patients on abortion. Critics argue that the case could have been argued solely on the basis of statutory construction of the provisions at issue. Critics also point to Roberts’ co-authoring the government’s amicus brief in Bray, a private suit brought against Operation Rescue, which argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection rights. The unspoken undercurrent of these charges, and the likely basis for a whispering campaign against Roberts, is that he is a practicing Catholic and therefore predisposed to advancing the social policies of the Catholic Church through judicial opinions.
• In both cases, Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.
• The Rust argument, which has been a focal point of criticism of Roberts by PFAW and other abortion interest groups, is easily rebutted. The SG’s office was simply restating the position that the Reagan and Bush Administrations had already taken in several other cases. Indeed, while the focus of the government’s Rust argument was statutory, the reference to Roe in the Rust brief was minimal: “Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.” Judge Roberts has not decided any cases involving abortion, and it would be irresponsible to speculate on how he might rule in such a case.
• At bottom, critics who attack Roberts’ unstated views on abortion are simply attempting to impose a religious litmus test on nominees, i.e., practicing religious (especially Christians) need not apply. This is the same scurrilous attack on several of the President’s lower court nominees, such as Bill Pryor, and has no place in modern politics.