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The great conservative hope


PRESIDENT BUSH'S minions are telling their most conservative supporters that federal appeals court judge John Roberts is a slam-dunk certainty to extend government control of reproductive decisions into two major areas after he is confirmed as a Supreme Court justice.

I suspect that in large part they are making it all up. The country's antichoice minority has a track record of gullibility extending back to the days of Ronald Reagan and George H.W. Bush. How else can one explain the anomaly that in every conservative government for the last generation, including the chance to nominate six justices, three conservative presidents have chosen to chip at reproductive choice's margins rather than take it on frontally. In the meantime, abortion rights have been exercised in this country without interruption.

However, George W. Bush has the distinction of having won the presidency twice while saying specifically that his models for the court are the two justices most identified with strict government regulation of pregnancy -- Antonin Scalia and Clarence Thomas. In preparing for a confirmation that is more likely to be a love-in than a searching examination of Judge Roberts's views, the president was at least on the spot to the extent that his most vocal supporters had to be reassured that Roberts is a worthy partner-to-be of the court's most rabidly antichoice activists.

Putting aside for the moment Roberts's views about abortion itself, the point being made by his advocates with Bush administration connections is that his record and their personal knowledge of him provides assurance that he is going to be the fulcrum around which two new, narrow court majorities will be created -- probably in the upcoming term -- with the departure of Sandra Day O'Connor.

One of them involves the decade-long effort to show that government can regulate pregnancy without regard to the broad impact on a woman's health -- most specifically her ability to have children in the future if abortion rights are denied her. This effort has also sought to regulate pregnancy without regard to whether a proscribed method of abortion occurs early or late, thus obliterating another of the central foundations of Roe v. Wade.

State laws regulating pregnancy in this fashion -- to further the cause, a term without medical basis (partial-birth abortion) was invented to help the campaign -- were declared unconstitutional by a 5-4, O'Connor-led court. Congress's effort to accomplish the same purpose has so far been voided by every judge who has examined it, based on precedents, but with Roberts there is now an opportunity to change the result. The presumption had been that the federal statute was doomed as long as O'Connor was still a justice. Now it has more than a chance, and the Bushies are telling their conservative friends it's a certainty Roberts will uphold the statute.

The second new, 5-4 majority could come next term out of a New Hampshire law that so far has also failed to pass federal judicial scrutiny. This one revives an old chestnut -- requirements that parents be notified of a daughter's impending abortion -- that has already been used to chip at Roe's original guarantees, but with a twist. The New Hampshire Legislature has required a 48-hour period after a required written notice has been delivered to at least one parent that cannot be waived in case the young woman is a victim or rape, incest, or child abuse. The woman has a shot at a waiver from a judge and if her life is directly threatened, but that's it. Since intra-family disputes are not exactly a daily occurrence, the larger intent of the law is obvious -- to further undercut the health exemption in Roe to prepare the way for the next set of restrictions on abortion rights.

The picture White House officials are painting of Judge Roberts to their social conservative pals is definitely not that of another David Souter, and probably not another Scalia or Thomas. Instead the picture resembles Anthony Kennedy, another impeccably credentialed conservative who is affable, religious, smart as a whip, and unlikely to encounter a government restriction of abortion rights he won't approve.

With Roberts in his honeymoon phase on Capitol Hill, this behind-the-scenes Bushie activity suggests three obligations for those senators who support choice. One is to press for all records of Judge Roberts's work in the solicitor general's office during Bush I, including his assistance in writing and then signing a brief to the Supreme Court calling for the overturning of Roe itself. To the general public the White House portrays the judge as a lawyer advocating for his client; to its conservative friends, the White House is saying that he believed in his work. Let's find the truth.

The second is to question him for his views on the bedrock of Roe's foundation -- a right to privacy. Any sign of dissent would be grounds for a filibuster.

But the most important obligation is to secure abortion rights through political work. In the end, the courts never provide enough protection for constitutional rights if voters are not asked to support them.

Thomas Oliphant's e-mail address is

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