Bray v. Alexandria, Roberts, clinic violence, and discrimination against women
posted by bitchphd
So here is a little bit of the history behind the Bray v. Alexandria Women's Health Clinic case. The thing to remember is that, in 1993, anti-abortion groups had an established record of violence in "protesting" at women's health clinics: women seeking medical care and workers at the clinics had been assaulted, physically prevented from entering buildings, intimidated, and threatened. Clinics had been bombed. Here is a brief overview of the history of abortion clinic violence dating back to the early 1970s.
So the Bray case took place in an atmosphere where it was already established that protesters were not only protesting, but were threatening and harming both clinic workers and women seeking health care. Michael Bray, one of the litigants in the Bray case (although it is Jayne Bray, his wife, not he, who is the "Bray" in the case's title) had been convicted in the 80's in relation to a series of clinic bombings.
The case hinged upon a claim that this violent, threatening history did not constitute discrimination against women. The amicus brief was voluntarily filed in support of this position. (Interestingly, I have seen no one point out that there was also an amicus brief filed by Feminists for Life in the same case, one that made essentially the same argument as the Solicitor General's brief.)
Now, this is very similar to what Roberts wrote in the brief for Rust v. Sullivan, which I blogged a while back, in which he argued that Operation Rescue did not discriminate against women, but instead "pregnant people." I see similarities between that argument, the argument in Bray, the FFL brief, and his finding in Hedgepath v. Washington Metro (which I've also blogged about). And it is very similar to the argument he made in a case in Kansas a few years before Bray, as this editorial in the Wichita Eagle points out. (Do read that last link, it's very interesting and good.)
In all these cases, what I see are arguments that explicitly refuse to recognize women (or, in Hedgepath, children) as in any way different from men. And this is a real problem, given that women (and children) are often discriminated against *precisely* because of the ways they differ from men, e.g., when it comes to reproductive issues.
Now, in these cases (except for Hedgepath), yes: Roberts was writing a brief, not issuing a judgment. And the FFL brief wasn't written by him, or in association with him, and I will firmly say that I think that the activities of someone's spouse are neither here nor there, or at least shouldn't formally be considered, which is why I have said nothing about FFL on this blog up 'til now.
But.
The thing is, a Supreme Court seat is not an entitlement. Or, to mix my legal metaphors, Roberts is not on trial for murder. We are not obligated to give him the benefit of the doubt. We are not obligated to give him a job on the Supreme Court. While there is no smoking gun in the sense that Roberts has not (and obviously will not) said on the record that he, *personally* thinks that Roe v. Wade needs to go (although he did write that, again in a brief for Rust v. Sullivan), there is certainly a great deal of evidence that he may very well--probably does--hold that belief. He has consistently and clearly been involved at a very high level in cases that do not recognize women's right to reproductive health care, that do not recognize clear and obvious discrimination against women, to the point of violence. This is enough. Whether or not it would be enough to find him guilty is not the point; the point is whether or not it is enough to lead a reasonable person to believe that he does not, in his interpretation of the law, recognize women's rights in this area.
Here are a few more links.
1. On the history behind Bray, from the Feminist Majority Foundation.
2. More on the history of Bray, from Planned Parenthood.
3. Scott Lemieux again, ripping into the argument that threatening women at abortion clinics is a nonviolent form of protest.
4. Completely unrelated to abortion, a Salon piece on Roberts and corporate interests.
So the Bray case took place in an atmosphere where it was already established that protesters were not only protesting, but were threatening and harming both clinic workers and women seeking health care. Michael Bray, one of the litigants in the Bray case (although it is Jayne Bray, his wife, not he, who is the "Bray" in the case's title) had been convicted in the 80's in relation to a series of clinic bombings.
The case hinged upon a claim that this violent, threatening history did not constitute discrimination against women. The amicus brief was voluntarily filed in support of this position. (Interestingly, I have seen no one point out that there was also an amicus brief filed by Feminists for Life in the same case, one that made essentially the same argument as the Solicitor General's brief.)
Now, this is very similar to what Roberts wrote in the brief for Rust v. Sullivan, which I blogged a while back, in which he argued that Operation Rescue did not discriminate against women, but instead "pregnant people." I see similarities between that argument, the argument in Bray, the FFL brief, and his finding in Hedgepath v. Washington Metro (which I've also blogged about). And it is very similar to the argument he made in a case in Kansas a few years before Bray, as this editorial in the Wichita Eagle points out. (Do read that last link, it's very interesting and good.)
In all these cases, what I see are arguments that explicitly refuse to recognize women (or, in Hedgepath, children) as in any way different from men. And this is a real problem, given that women (and children) are often discriminated against *precisely* because of the ways they differ from men, e.g., when it comes to reproductive issues.
Now, in these cases (except for Hedgepath), yes: Roberts was writing a brief, not issuing a judgment. And the FFL brief wasn't written by him, or in association with him, and I will firmly say that I think that the activities of someone's spouse are neither here nor there, or at least shouldn't formally be considered, which is why I have said nothing about FFL on this blog up 'til now.
But.
The thing is, a Supreme Court seat is not an entitlement. Or, to mix my legal metaphors, Roberts is not on trial for murder. We are not obligated to give him the benefit of the doubt. We are not obligated to give him a job on the Supreme Court. While there is no smoking gun in the sense that Roberts has not (and obviously will not) said on the record that he, *personally* thinks that Roe v. Wade needs to go (although he did write that, again in a brief for Rust v. Sullivan), there is certainly a great deal of evidence that he may very well--probably does--hold that belief. He has consistently and clearly been involved at a very high level in cases that do not recognize women's right to reproductive health care, that do not recognize clear and obvious discrimination against women, to the point of violence. This is enough. Whether or not it would be enough to find him guilty is not the point; the point is whether or not it is enough to lead a reasonable person to believe that he does not, in his interpretation of the law, recognize women's rights in this area.
Here are a few more links.
1. On the history behind Bray, from the Feminist Majority Foundation.
2. More on the history of Bray, from Planned Parenthood.
3. Scott Lemieux again, ripping into the argument that threatening women at abortion clinics is a nonviolent form of protest.
4. Completely unrelated to abortion, a Salon piece on Roberts and corporate interests.
Posted at 8:39 PM
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