Life, Liberty and : THE PURSUIT OF COMPROMISE : ABORTION The Clash of Absolutes <i> by Laurence H. Tribe (W. W. Norton: $18.95; 410 pp.)</i>

Abortion, it is often said, is one of the nastiest and most divisive of all our domestic issues. This may well be true in one sense: The most vocal activist groups, those that command the public stage, are polarized, neither crediting the other with much more than gross moral insensitivity and blind zeal. But public opinion polls--in general more favorable to a moderately permissive position--show an ambivalent and troubled majority when the nuances of their positions are explored.

If that dominant opinion could somehow be written into law as a middle-ground solution, there would be restrictions on late abortions, parental notification requirements in the case of teen-agers, and more efforts to inform women of alternative choices. But the most important outcome would be to retain the legal ease with which women can now obtain most early abortions. It is doubtful that all such restrictions would reduce by more than 10% the present annual rate of 1.6 million abortions.

I mention that point to underscore an odd feature of Laurence Tribe’s interesting and informative book: While he introduces the book as an effort to “loosen the logjam that the abortion debate has become,” it is in fact the highly partisan brief of an abortion liberal. He wants, he says, to find a way beyond the clash of two supposed absolutes, that of the right to life of the fetus and the right to liberty of the woman who wants to end a pregnancy. In actuality, his clear winner is that of women’s rights. Any compromise, it seems, must come from the abortion conservatives.

Tribe, a professor of constitutional law at the Harvard Law School, interprets the crucial 1973 Roe v. Wade Supreme Court decision (correctly, I believe) as itself a compromise, and he is in the end reluctant to give any further ground. He criticizes the creative effort of his Harvard colleague Mary Ann Glendon (in her 1987 book “Abortion and Divorce in Western Law”) to look to the Western European countries for helpful guidance. A number of those countries are at once more restrictive in their laws than is the United States (though not on early abortions) and far more supportive in their social programs of women and mothers.

Tribe views the Europeans’ attempts to affirm the value of the fetus while still permitting abortion as little more than hypocrisy. He is similarly scornful of proposed American laws that would mandate waiting periods for women who want abortions, require parental notification for minors, and place restrictions on government financing of abortion for indigent women. His brisk rejection of the few possibilities for finding some lasting social peace on abortion is unfortunate, particularly since he offers nothing to take their place.

The strength of Tribe’s book lies elsewhere, particularly in his constitutional analysis of Roe v. Wade . The legal critics of that decision (not all of them conservatives by any means) have attacked it as a particularly egregious example of illegitimate legal activism, a usurping by judges of an issue that should be left to legislators.

As part of his response to that charge, Tribe tellingly quotes Justice Robert Jackson’s 1943 opinion--upholding the right of children not to take part in compulsory flag-saluting ceremonies--that “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

But is the “right to privacy,” the key concept in Roe v. Wade , among our constitutional rights? It certainly is not mentioned as such in the Constitution, and Judge Robert Bork in particular has attacked those who hold it to be among our guaranteed rights. Tribe’s response nicely summarizes what is probably now the mainstream legal judgment: “The fact that a right is not mentioned, in so many words, anywhere in the Constitution, is not, and cannot be, a decisive objection . . . the Constitution tells us that it was not constructed with an exhaustive list of enumerated rights.”

He then goes on to argue that a “right to privacy” is plausibly included among the unspecified rights, and that a right to abortion is no less plausibly encompassed within the meaning of privacy. He effectively shows that efforts to define the fetus as a full person with its own right to life--and thus to offset a woman’s claim to privacy--would have grave legal consequences, among them the logical necessity of prosecuting women who have abortions as murderers (a step which even abortion conservatives have hesitated to recommend).

Had Tribe done no more than lay out the Constitutional case for continuing support of Roe v. Wade , his book would have been a valuable contribution to those of us on the liberal side of the debate, and maybe persuasive for others as well. But he makes the mistake of tantalizingly opening up the possibility of something richer without diligently following through on that promise. He notes that most people, including himself, are morally torn by the abortion issue: “For nearly everyone, the deepest truth is that the clash is an internal one. . . . Something akin to horror must be felt by everyone involved in the question of abortion who has not been anesthetized to the reality of what is at stake.”

Yet having admitted that much, he seems unable to take seriously those who reject Roe v. Wade . He repeats the old stereotype that resistance to legal abortion is little more than an exercise of male power over women. Yet in public-opinion surveys over the years, women have consistently been more opposed to permissive abortion than men have. Young males are the most supportive of a woman’s right to an abortion, not surprisingly if one thinks about it.

Nor can Tribe resist trying to show that concern for the life of the fetus probably is a cover for a desire to hold onto conservative sexual mores. No doubt that is true for some, but there are plenty of abortion conservatives who favor expanded contraceptive programs and better social programs for women and children, and who oppose capital punishment as well as other forms of violence against persons.

What Tribe’s book best shows perhaps is that, given our historical dedication to liberty, it is increasingly hard to develop potent arguments to limit its scope. That scope now encompasses women’s reproductive rights, which I--along with Tribe--believe must include access to abortion. Yet we can be left uneasy with that interpretation of liberty, which seems to run roughshod over important moral perceptions about developing life.

Tribe shares many of those perceptions, and I can only wish he had brought to them the same reasoning skills he devotes to upholding women’s choice. An otherwise competent, sometimes pungent, partisan book might have been superb.

BOOK MARK

For an excerpt from “Abortion: The Clash of Absolutes,” see Opinion section, Page 4.