Thomas Hearings Likely to Focus on Abortion Issue : Judiciary: So far, attention has been centered on nominee’s civil rights views. Experts say that will change.

Last year, abortion rights advocates spent the summer months searching unsuccessfully for evidence to indicate whether Supreme Court nominee David H. Souter opposed a woman’s right to end an unwanted pregnancy.

This summer, those same advocates say they have found clear evidence that Supreme Court nominee Clarence Thomas opposes abortion. The unanswered question now is whether the Democrat-dominated Senate Judiciary Committee will use that evidence to block President Bush’s nominee.

Unlike Souter, “Judge Thomas is not a blank slate” on the abortion issue, said James Wagner, legislative director of the National Abortion Rights Action League. “Putting him on the court leads directly to overturning Roe vs. Wade,” the 1973 ruling that legalized abortion nationwide.

So far, discussion of Thomas’ position on abortion has been muted while attention has focused on his views on civil rights. The selection of Thomas, a black conservative who opposes preferences based on race, has divided civil rights groups such as the NAACP and provoked a lively debate among members of Congress.

During the September confirmation hearings, however, Thomas’ views on abortion are likely to take center stage, Senate aides say.

That conclusion is based in part on political considerations. Opinion polls indicate that President Bush has won the support of a majority of Americans on the civil rights issue by painting the Democrats as advocates of “quotas” in hiring. But most Americans disagree with proposals that would bar women from choosing abortion.

So far, only a few Senate Democrats, such as Howard M. Metzenbaum of Ohio and Alan Cranston of California, have said they may oppose Thomas unless he indicates his support for the right to abortion.

But aides to other senators say that Thomas’ speeches and writings will give Judiciary Committee members an ample opportunity to question the nominee.

“It gives a real opening to ask him to clarify his position,” said one committee aide.

On the civil rights issue, some strategists contend Bush will prevail politically even if the Democratic Congress passes a new civil rights bill over his veto.

By the same token, they say, the Democrats could benefit by using the Thomas hearings to portray Bush as seeking to return the nation to the era when abortion was a crime. Under this thinking, the Democrats can come out ahead even if Thomas is confirmed.

Abortion rights advocates think Thomas’ anti-abortion position is already clear. As evidence, they point to a comment he made during a June, 1987, speech at the Heritage Foundation in Washington.

Two months earlier, Lewis E. Lehrman, a wealthy conservative who once ran as a Republican for governor of New York, had written an article in the American Spectator entitled “The Declaration of Independence and the Right to Life: One Leads Unmistakably From the Other.”

In it, he argued that the Declaration’s statement “that all men . . . are endowed by their Creator with certain unalienable rights . . . (and) among these are life, liberty and the pursuit of happiness” means that abortion has always been illegal and immoral, regardless of what current laws or the Supreme Court say on the subject.

He noted that before the Civil War, young attorney Abraham Lincoln cited the Declaration as a reason for contending that slavery was immoral and illegal, even though it was permitted by current laws. “Adapting Lincoln’s words from his patient struggle for the inalienable right to liberty in the 1850s, we may now say that the ‘durable’ moral issue of our age is the struggle for the inalienable right to life of the child-in-the-womb,” Lehrman wrote.

During his June talk, Thomas said he believed in the “natural law” as set forth in the Declaration of Independence. He then added that “Lewis Lehrman’s recent essay in the American Spectator on the Declaration of Independence and the meaning of the right to life is a splendid example of applying natural law.”

Most attorneys who have studied the two articles have concluded that Thomas embraces Lehrman’s view.

If so, Thomas has a more radical anti-abortion stance than any recent member of the Supreme Court, at least as expressed in their opinions.

The more liberal members of the court say that the Constitution’s guarantee of a right to “liberty” includes the right to choose abortion. By contrast, the conservative justices assert the Constitution says nothing about abortion, and, therefore, permits states to enact laws forbidding the practice.

But none have ever said there is a constitutional “right to life” that protects a fetus. If that were so, abortion would be illegal everywhere, even in states where lawmakers voted to permit it.

In the original Roe decision, the justices said that states may protect a fetus that has reached the point of viability, which usually occurs after 24 weeks of pregnancy. Before that, however, a woman has a right to seek an abortion.

Today, that decision is in jeopardy. Only two members of the court, Justices Harry A. Blackmun, 82, and John Paul Stevens, 71, support the right to abortion as set forth in the Roe decision.

“I read Clarence Thomas as clearly expressing the view that there is not only no constitutional right to abortion, but that there may be a constitutional requirement to adopt legislation restricting abortion,” said Duke University law professor Walter Dellinger, an adviser to the Senate Democrats on the Judiciary Committee. “His views are out there now. And that is likely to change the dynamics of the confirmation hearing.”

Thomas’ belief in “natural law” also would make him distinct among modern-day Supreme Court justices.

In the 20th Century, both liberal and conservative members of the court have agreed on a concept known as “positivism,” which holds that the law is only what is positively set forth in statutes, the Constitution or court rulings. In this view, there is no fundamental or natural law that exists independently.

In several speeches, Thomas has said he believes in a natural law tradition that includes Thomas Jefferson’s declaration in the 18th Century that “all men are created equal,” Lincoln’s fight against slavery in the 19th Century and Dr. Martin Luther King Jr.’s struggle for equal rights in this century.

“Without such a notion of natural law, the entire American political tradition, from Washington to Lincoln, from Jefferson to Martin Luther King, would be unintelligible,” Thomas said in 1987. “This approach allows us to reassert the primacy of the individual and establishes our inherent equality as a God-given right.”

But Thomas has not spelled out how his concept of natural law would differ in practice from the current understandings of constitutional law, except for his reference to Lehrman’s assertion of a right to life for a fetus as “a splendid example of applying natural law.”