O’Connor Skeptical of Minnesota Consent Law : Abortion: The justice’s comments may provide a clue to her true views. She will hold the pivotal vote on the issue.

Supreme Court Justice Sandra Day O’Connor, the pivotal vote on the abortion issue, expressed deep skepticism Wednesday over a Minnesota law that requires that both parents of a pregnant minor be notified before she can have an abortion.

The law “just doesn’t provide for any exceptions,” O’Connor complained, even in cases where a father had abused his daughter or was long absent from the home.

How could it be in “the best interest of the child,” she asked, to force a teen-age girl to talk about an unwanted pregnancy with a parent whom she has not seen for years?

The Minnesota case was one of two teen-age abortion appeals argued before the court Wednesday in which the justices must balance the rights of a pregnant minor against the interests of her parents. Though the phrase “Roe vs. Wade” was notably absent during the two hours of argument, the Minnesota case nonetheless may yield an important ruling on the right to abortion.

Since joining the court in 1981, O’Connor has never voted to strike down a state abortion regulation. As a result, she has not had to say whether in fact she believes the Constitution gives women a right to abortion.

At the same time, she has pointedly refused to join her more conservative colleagues in voting to either overrule or seriously undercut the abortion right. Despite much speculation, her true views have remained a mystery.

But if her comments Wednesday are any indicator, O’Connor is leaning toward deciding against the Minnesota restrictions. If she votes to strike down the law she must give her reasons, and thus may be forced to declare that Roe vs. Wade--the 1973 ruling by the court that established a woman’s right to have an abortion--is still valid.

The practical impact for teen-agers may be small. The justices, including O’Connor, seemed ready Wednesday to uphold an Ohio law that requires a pregnant minor to notify one parent, or to get permission from a judge, before obtaining an abortion.

Studies have estimated that teen-age girls get nearly one-third of the 1.5 million abortions performed nationwide each year. Thirty-one states have laws on the books requiring that a minor either notify or gain the consent of her parents before she gets an abortion. But in most cases the laws are not enforced. California law requires a parent’s consent, but the state appellate court has blocked enforcement on grounds the law is unconstitutional.

Minnesota’s law is the only one to require that both parents, even if separated or divorced, receive advance notification. A high court ruling striking down the Minnesota law while upholding the Ohio law could have the effect of clearing the way for enforcement of the laws in many other states.

Nonetheless, an O’Connor opinion nullifying the Minnesota regulation based on Roe vs. Wade could mark a key legal victory for abortion-rights advocates. A statement from her reaffirming the basic right to choose an abortion would send a clear message to lawyers and judges around the nation that Roe is still the law.

Whatever she decides, the answer probably will not be known for months. On Friday, the justices will meet behind closed-doors and cast their votes in both cases. If Chief Justice William H. Rehnquist, a conservative and a critic of the Roe ruling, can gain four other votes, he will decide who drafts the majority opinion.

If Justice William J. Brennan Jr., the senior liberal, can get four votes to strike down the state laws, he will be in charge of writing the opinions. If O’Connor follows her recent pattern, however, she may stand alone and set forth her own views in a separate opinion.

In the Webster case, for example, O’Connor joined with Rehnquist only in voting to uphold the Missouri law banning abortions in public hospitals. She refused to join his opinion undercutting the decision. As a result, the Webster case broke little new legal ground, even though it set off a political storm around the nation.

The two cases heard Wednesday are the only abortion cases now before the high court. Last week, attorneys in Illinois withdrew their pending appeal after agreeing not to enforce strict abortion clinic regulations. Abortion-rights lawyers were delighted because the high court, by siding with the state, could have made it difficult for private abortion clinics to gain licenses.

During Wednesday’s argument, O’Connor wasted no time in confronting the Minnesota lawyer defending the 1981 parental notification statute.

John R. Tunheim, the state’s chief deputy attorney general, said that all parents, even those who are separated or divorced, can “be very helpful to minors in a time of trauma.” About 50% of the state’s teen-agers live at home with both of their biological parents, he said.

“Put another way, 50% do not,” O’Connor interjected.

It “may be true in general,” she told Tunheim, that both parents should be involved in a pregnant daughter’s decision whether to get an abortion, “but there might be some circumstances where it would not be in the best interest of the minor to tell both parents of her problem.”

Janet Benshoof, a lawyer for the American Civil Liberties Union, said that the two-parent notification rule is “out of step with the reality of family life.” Because of an earlier court order, the teen-agers were given the option of asking a judge, instead of their parents, to allow the abortion, but the Minnesota attorneys are seeking to have the notification requirement applied to all minors seeking abortion. The only exception would involve incest.

After the 1986 trial, U.S. District Judge Donald Alsop ruled the law unconstitutional, but a federal appeals court reversed him last year (Hodgson vs. Minnesota, 88-1125).

In the other case, another federal appeals court had struck down a less stringent Ohio law. It required that a pregnant girl either notify one parent or ask a judge for permission to get an abortion. The appeals court said that the law makes it too difficult for the teen-ager to win the judge’s consent and the state appealed (Ohio vs. Akron Center for Reproductive Health, 88-805).