To conservative activists, the Supreme Court's 1973 Roe v. Wade decision recognizing a right to abortion is a constitutional abomination, the most outrageous misuse of the court's power since the justices voted to deny African Americans citizenship in the 1857 Dred Scott case.
But Attorney General Alberto R. Gonzales, a possible Supreme Court nominee, has never voiced such a harsh assessment of the Roe decision. At least twice he has called it "the law of the land."
In each of his high-profile government roles -- as a justice on the Texas Supreme Court, as White House counsel and as attorney general -- he has shown little personal zeal for the antiabortion cause.
Perhaps more than any other aspect of Gonzales's record, it is his cautious attitude toward Roe that fuels the conservative groundswell against his possible elevation to the high court.
"It's one reason there's near-unanimity against Gonzales among conservative groups," said J.C. Willke, president of the Cincinnati-based Life Issues Institute, an antiabortion organization.
Willke said his doubts were confirmed by the answer he got from Gonzales at a May 30, 2003, meeting, when he asked the then-White House counsel whether, "regarding Roe v. Wade, stare decisis would be governing." Stare decisis is the legal principle that courts should avoid overruling existing precedent.
"Yes," Gonzales replied, according to Willke. The audience of about 500 conservative activists murmured disapprovingly and there was some booing, Willke said.
Willke e-mailed his account of these events to fellow antiabortion activists last year, and the message was sent out again earlier this week by Manuel A. Miranda of the conservative Third Branch Conference.
Justice Department spokesman Kevin Madden said Gonzales would not comment on Willke's account or any other issues related to the Supreme Court nomination process.
As attorney general, Gonzales is in the unusual position of both helping in the search for a candidate for the court while also being a candidate himself. In an interview over the weekend during a trip to Baghdad, Gonzales declined to comment on his chances. "I love being attorney general," he said.
Gonzales's most recent public acknowledgment of Roe's status as precedent came during his confirmation hearings on Jan. 5.
Sen. Richard J. Durbin (D-Ill.) asked whether Gonzales, like his predecessor, John D. Ashcroft, would pledge to enforce Roe despite any personal disagreements he has with the decision.
Far from expressing any personal disagreement with Roe, Gonzales answered in tones that suggested he considered it a settled issue.
"Of course, the Supreme Court has recognized a right of privacy in our Constitution, and in Roe the court held that that right of privacy includes a woman's right to choose to have an abortion," he said. "A little over a decade ago, the court, in Casey, had an opportunity to revisit that issue. They made a -- they declined to overturn Roe, and of course made a new standard that any restriction that constituted an 'undue burden' on a woman's right to choose could not be sustained."
"My judgment," Gonzales concluded, "is that the court has had an opportunity -- ample opportunities -- to look at this issue. It has declined to do so. And as far as I'm concerned, it is the law of the land and I will enforce it."
Indeed, this formulation sounded slightly less ambivalent than Gonzales's answer to an interviewer from U.S. News & World Report in March 2001, when he said: "All I'll say about it is, how I feel about it personally may differ with how I feel about it legally. . . . It's the law of the land."
As a justice on the Supreme Court of Texas from 1999 to 2000, Gonzales clashed with more conservative members of the court -- including Priscilla R. Owen, recently appointed by President Bush to the U.S. Court of Appeals for the 5th Circuit -- when the Texas justices were called upon to interpret the state's law requiring minors to notify their parents before getting an abortion.
He accused the conservatives of trying to impose their own view that exceptions to the parental notification rule should be "very rare" instead of leaving it up to the legislature.
"Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism," he wrote.
"What he is saying is that he is professing to take the conservative position," said David J. Garrow, a professor of law at Emory University. "Conservative in his mind means following the statute as written by the legislature."
Staff writer Dan Eggen contributed to this report.