Before Roe v. Wade: Judge Friendly's draft abortion opinion.

• Author: Randolph, A. Raymond

It is well known that Henry J. Friendly was one of the greatest judges in our nation's history. (1) Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, (2) Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion, and his papers are now at the Harvard Law School, awaiting indexing.

Tonight I want to share the opinion with you. I hope you will agree with me that Judge Friendly's draft of thirty-five years ago is not only penetrating, but prophetic. I have read my copy many times over the years. Not because our court hears abortion cases. In my fifteen years on the D.C. Circuit, I have not sat on a single abortion-rights case. I have read and reread my private copy because it embodies such a clear and brilliant message about the proper role of the federal judiciary, because it is timeless, because it is a classic in legal literature. After I give the opinion to you, I want to compare it with the Supreme Court's performance, from Roe v. Wade to Lawrence v. Texas. (3)

Now for some history. In 1968, a few years after Griswold v. Connecticut, (4) Roy Lucas, an assistant professor at the University of Alabama Law School wrote a law review article entitled Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes. (5) In his article, Lucas acknowledged that legislative efforts to reform state laws prohibiting abortion were making headway in states across the country. (6) But he had a quicker and easier way to get rid of the state laws: through the federal courts. To accomplish this, Lucas laid out a blueprint and proposed an innovation: use Griswold and its "penumbral right emanating from values embodied in the express provisions of the Bill of Rights" (7) to have the laws declared unconstitutional. (8)

After his article appeared, Lucas founded an organization in Manhattan to advance his cause. He named it--of all things--the James Madison Constitutional Law Institute. For the next four years he was involved in nearly every case around the country challenging abortion laws, including finally Roe v. Wade. (9)

Lucas chose to bring his first case in New York. (10) The case was assigned to a three-judge district court. At the time, federal actions challenging the constitutionality of a state law were heard by panels consisting of two district judges and one court of appeals judge, with direct appeal--not certiorari--to the Supreme Court. (11) Henry Friendly was drawn as the court of appeals judge. (12) was his law clerk on the case.

There were several evidentiary hearings and a mountain of pleadings. Judge Friendly's customary practice was to discuss a case with his law clerk and then draft the opinion himself, with the clerk serving as editor. We had many conversations about the abortion case, but not once did the Judge mention his personal views about abortion, and I never offered mine.

In the early spring of 1970, the Judge and his wife Sophie went off on a long-planned cruise through the Panama Canal. The abortion case must have been weighing on his mind. While on the cruise, without the benefit of a law library, he wrote--in longhand--a preliminary opinion and mailed it to chambers. The package arrived just about the time President Nixon nominated Harry Blackmun to the Supreme Court. (13)

The Judge's secretary typed the draft in the usual triple-spaced format and handed me a copy, together with a note from the Judge. In the note he said that during the cruise, his views on the case had "crystallized"--his word--and that if I found "time hanging heavy" I should start working on the draft. Judge Friendly added, in a note to all of us: "The trip has been just fine. The ship is perfect, built for cruising and very modern.... The only rub concerns our fellow passengers. About two-thirds of them are Californians, and if I were in Ray's shoes, I'd think twice before settling there. [I was then considering this.] Most of them regard New York as a foreign city and their political views are somewhere to the right of Reagan. Yet they are well supplied with money--many of them having taken the cruise both ways, a rather evident lack of imagination." (14)

I did not make much headway on the Judge's draft. Shortly after it arrived, the New York legislature amended the state's abortion statute to allow abortion on demand during the first twenty-four weeks of pregnancy. (15) The three-judge court dismissed the case as moot, and no opinion issued.

In sharing Judge Friendly's draft with you, I must ask for your patience. It was intended for the eye, not the ear, and I will have to summarize portions of it. But I will read some parts exactly as he wrote them because they have such an important bearing on the Supreme Court's continuing struggle with the problems he identified so long ago.

The Judge went straight to Lucas's argument from Griswold: "At first sight the Griswold decision would not seem to afford even a slender foundation for the plaintiffs' superstructure. The Connecticut statute [struck down in Griswold] ... was the most offensive form of anti-contraception legislation possible; it banned the use of contraceptive devices." Griswold, he thought, might rest on the obnoxious prospect of the police, as he put it, "spying the marital couch," a prospect he thought extremely unlikely in any event.

Judge Friendly viewed abortion as another matter entirely, having nothing to do with privacy of the Griswold variety. "The type of abortion the plaintiffs particularly wish to protect against governmental sanction is the antithesis of privacy," he wrote. "The woman consents to intervention in the uterus by a physician, with the usual retinue of assistants, nurses, and other paramedical personnel.... While Griswold may well mean that the state cannot compel a woman to submit to an abortion, but see Buck v. Bell U.S.--(--), [16] it is exceedingly hard to read it as supporting a conclusion that the state may not prohibit other persons from committing one...."

The Judge then moved to what he saw as the heart of the plaintiffs' argument: "that a person has a constitutionally protected right to do as he pleases with his--in this instance, her--own body so long as no harm is done to others." As I will discuss in a moment, the Supreme Court, knowingly or unknowingly, has now embraced this concept as a matter of constitutional law. Judge Friendly would have none of it. He wrote, "Apart from our inability to find all this in Griswold, the principle would have a disturbing sweep. Seemingly it would invalidate a great variety of criminal statutes which existed generally when the 14th Amendment was adopted and the validity of which has long been assumed, whatever debate there has been about their wisdom. Examples are statutes against attempted suicide, homosexual conduct ..., bestiality, and drunkenness unaccompanied by threatened breach of the peace. Much legislation against the use of drugs might also come under the ban."

He continued, "Plaintiffs' position is quite reminiscent of the famous statement of J. S. Mill. This has given rise to a spirited debate in England in recent years. [17] We are not required to umpire that dispute, which concerns what a legislature should do--not what it may do." And then he wrote this: "[Y]ears ago, when courts with considerable freedom struck down statutes that they strongly disapproved, Mr. Justice Holmes declared in a celebrated dissent that the Fourteenth Amendment did not enact Herbert Spencer's Social Statics. No more did it enact J. S. Mill's views on the proper limits of law-making."

I should pause here and briefly give you the theories of Spencer and Mill.

In his dissent in Lochner v. New York, (18) to which Judge Friendly referred, Justice Holmes summarized Herbert Spencer's idea. (This year, by the way, marks the one-hundredth anniversary of the once-repudiated Lochner v. New York, which found a violation of the Due Process Clause in New York's limitation on the maximum hours bakers could work.) As Holmes put it, Spencer laid down a principle in his book Social Statics that a person had the "liberty ... to do as he likes so long as he does not interfere with the liberty of others to do the same." (19)

John Stuart Mill, Spencer's contemporary, proposed much the same idea in his book On Liberty, published in 1859. Mill's "harm principle," as it came to be known, was this: "[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." (20)

Judge Friendly, after rejecting the notion that the theories of Mill and Spencer reflected constitutional law, turned to the evidence in the New York abortion case. The evidence dealt with "the hardship to a woman who is carrying and ultimately bearing an unwanted child ... [,] the plight of the unmarried mother, the problems of poverty, fear of abnormality of the child, the horror of conception resulting from incest or rape. These and other factors may transform a hardship into austere tragedy. Yet, even if we were to take plaintiffs' legal position that the legislature cannot constitutionally interfere with a woman's right to do as she will with her own body so long as no harm is done to others, the argument does not support the conclusion plaintiffs would have us draw from it. For we cannot say the New York legislature lacked a rational basis for considering that abortion causes such harm. Even if we should put aside the interests of the father, negligible indeed in the many cases when he has abandoned the prospective mother but not in all, the legislature could permissibly consider the fetus itself to deserve protection. Historically such concern may have rested on theological grounds...