Abortion rulings difficult to gauge

WASHINGTON -- Advocates on both sides of the abortion divide are discovering that the once-bright line between supporters and opponents of Roe v. Wade has become harder to read, reducing the chances that the upcoming Supreme Court battle will be the open referendum on abortion rights that some are demanding.

Recent cases reaching state and federal courts have focused on an expanding array of regulations such as parental notification statutes, restrictions on protests outside clinics, and limits on the types of procedures used in abortions.

Those cases usually turn on a judge's interpretation of a statute rather than on his or her views on the constitutional right to privacy. For instance, a judge who rejects a minor's request for a bypass of parental-notification laws may only be following the rules laid down by the state legislature, not offering an opinion on the right to an abortion.

But after 11 years without an opening on the Supreme Court, many activists are determined to uncover any potential nominee's thinking on the abortion issue.

As a result, they are rushing to conclusions based on thin evidence, according to many law scholars and many involved in the nomination process.

''They're looking at a set of puzzle pieces that they think will yield a larger picture," Harvard Law School professor Richard Fallon said. But he added: ''If you just look at the materials they're pointing to, there's no way to know" how most prospective nominees might rule on the right to privacy.

Attorney General Alberto Gonzales, a friend of President Bush who is considered a leading candidate for the Supreme Court, has been attacked by conservative groups as soft on abortion, based largely on comments referring to Roe v. Wade as the law of the land -- a fact, but one that abortion opponents often use as a jumping-off point to express their belief that the decision was unconstitutional.

Gonzales did not do so, fueling speculation that he might have agreed with Roe or that he might be unwilling to overturn it because it's too ingrained in the law.

In addition, as a member of the Texas Supreme Court, Gonzales interpreted a parental-notification law as allowing a minor to have an abortion if a judge believes she had been sufficiently informed about the implications of ending her pregnancy. In the case, Gonzales said he was simply assessing the intentions of the Texas Legislature. And a majority of the court, all Republicans, agreed with him.

Manuel Miranda, a conservative activist and a former Senate Judiciary counsel who has sent e-mail messages to reporters relaying concerns about the Gonzales stand on abortion, acknowledged that he doesn't know Gonzales's views on Roe v. Wade, but bemoaned the fact that Gonzales did not side with another Texas Supreme Court justice, Priscilla Owen, who assessed the intentions of the Texas Legislature differently.

Owen's more restrictive interpretation of the parental- notification law got her labeled by liberals as an opponent of Roe v. Wade when she was under consideration for a federal appeals-court posting. At her confirmation hearing, she insisted that no one should assess a judge's views on Roe v. Wade based on their reading of a parental-notification statute.

Asked by Senator Dick Durbin, Democrat of Illinois, if her opinions in parental-notification cases did not ''reflect any opposition to a woman's right to choose," Owen said: ''No, I don't think they do."

C. Boyden Gray, the White House counsel under President George H.W. Bush, wrote a rebuttal of the Democrats' view, declaring: ''None of the parental notification cases involved any dispute over whether the Constitution guarantees the right to an abortion."

The Planned Parenthood Federation of America recently issued a press release suggesting that Justice Anthony Kennedy opposes Roe v. Wade.

That came as a surprise to numerous conservatives -- including former Judge Robert Bork, an unsuccessful Supreme Court nominee -- who have attacked Kennedy for affirming abortion rights when they were most vulnerable, in the 1992 challenge of Planned Parenthood v. Casey.

Nicole Berner, a staff lawyer for Planned Parenthood, pointed to a later case involving Nebraska's ban on the late-term procedure that opponents call ''partial-birth abortion." The Supreme Court majority declared the ban unconstitutional, in part because it didn't allow doctors to perform the procedure even if they were concerned for the health of the mother. Kennedy dissented, saying it was within Nebraska's discretion to ban the late-term procedure.

''A core aspect of Roe is that a woman's health must always be the central concern," Berner said.

But Kennedy's opinion didn't explicitly reject the notion that a woman's health must be considered; it merely attacked the idea that doctors should be given free rein to decide which procedure will best preserve a woman's health when an alternative is available.

''Requiring Nebraska to defer to Dr. Carhart's judgment is no different than forbidding Nebraska from enacting a ban at all," Kennedy wrote in the 2000 case of Stenberg v. Carhart. Abortion law, he wrote, ''does not give precedence to the views of a single physician or group of physicians regarding the relative safety of a particular procedure."

Based on this decision, Berner said, Planned Parenthood considers Kennedy an opponent of Roe v. Wade. The right to abortion, he said, now hangs by only one vote, that being vacated by Justice Sandra Day O'Connor.

But legal scholars note that Kennedy, like O'Connor and Justice David H. Souter, represents something of a middle ground on abortion rights. Many of the justices who formed the majority in Roe v. Wade believed the right to privacy guaranteed access to abortion, free from state interference. Those who opposed Roe, then and now, say there is no right to privacy that permits a woman to choose an abortion.

O'Connor, Souter, and Kennedy were all Republican nominees; all were believed to oppose abortion rights. But in the 1992 Casey decision, the three justices co-wrote a majority opinion that reaffirmed the ''essential holding" of Roe v. Wade, but gave states new flexibility to regulate the circumstances under which abortions were performed, so long as they didn't create an undue burden on the woman's ability to terminate her pregnancy.

Subsequent abortion cases have been decided under terms set out in the Casey opinion.

''Any justice of the Supreme Court faces a question of how finely or how thickly to slice the abortion question," said Fallon, the Harvard Law School professor. ''For some justices -- [Antonin] Scalia, [Clarence] Thomas, [William] Rehnquist -- they don't think there's anything complicated about it. They don't believe there is a constitutional right to an abortion. [Thurgood] Marshall, [William] Brennan, and Harry Blackmun thought there was an almost immutable right to abortion, and they didn't see any complexities."

But O'Connor, Souter, and Kennedy believe in balancing a woman's right to an abortion against a state's right to control the procedure of abortions. This formulation requires lower-court judges to apply a complicated array of tests to determine which restrictions are appropriate.

Often, such cases hang on the wording of the statutes, and don't necessarily involve constitutional issues. Nonetheless, these lower-court rulings are providing grist for speculation about where possible Supreme Court candidates stand on abortion rights.

Ellen Chesler, a historian of the birth-control movement, said technological changes have reshaped the debate over reproductive rights, presenting more complicated challenges to Roe v. Wade. The newest one, which is being distributed by a company that Chesler chairs, is the so-called morning-after pill that blocks conception and that, in some cases, prevents fertilized eggs from becoming fetuses.

But she argues that abortion-rights activists should judge potential nominees not by such cases, but by their support for the right to privacy, without which there would be no abortion rights -- or rights to contraception.

''Look at the privacy doctrine and ask if a nominee agrees with it," she said. ''The absolute core issue here is the privacy doctrine."

Many opponents of abortion rights have joined supporters in calling for nominees to come clean about the right to privacy. But few say any nominee would agree to discuss it at a confirmation hearing. Therefore, the most activists will be able to do is make a guess -- and guesses are often wrong.

''Before 1992, the prediction would have been that O'Connor, Kennedy, and Souter would have overruled Roe v. Wade," noted Fallon. ''But when push came to shove, they did not."