Bench Memos

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Judge Randolph on Judge Friendly on Abortion


More catch-up on my part: Be sure to read Judge A. Raymond Randolph’s Barbara K. Olson Memorial Lecture, delivered at last November’s Federalist Society Convention. Judge Randolph discusses a previously unknown draft opinion by the widely respected judge for whom he (and Chief Justice Roberts, among others) clerked, Judge Henry J. Friendly. The draft opinion, composed in 1970, addressed whether there was a constitutional right to abortion. The opinion was never issued because the case in which it was drafted was dismissed as moot after New York revised its abortion laws.

We’ve become so used to the claim that acceptance of Griswold (the Court’s 1965 ruling recognizing a right of marital privacy extending to use of contraception) somehow requires acceptance of Roe v. Wade — and to the concept of privacy having become a virtual euphemism for abortion — that it’s refreshing to hear some straight talk:

Judge Friendly viewed abortion as … 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. ____ (____), it is exceedingly hard to read it as supporting a conclusion that the state may not prohibit other persons from committing one ….”
Judge Friendly also rejected the 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”:

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. . . . 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.”
As for the debate over the status of the unborn:

“We shall not take part in that debate or attempt to
determine just when a fetus becomes a ‘human being’. It is enough that
the legislature was not required to accept plaintiffs’ demeaning characterizations of it. Modern biology instructs that the genetic code that will dictate the entire future of the fetus is formed as early as the ___ day after conception [Whelan comment: Had more work been done on the opinion, "at conception" would presumably have replaced "as early as the ___ day after conception"]; the fetus is thus something more than inert matter. The rules of property and of tort have come increasingly to recognize its rights. While we are a long way from saying that such decisions compel the legislature to extend to the fetus the same protection against destruction that it does after birth, it would be incongruous . . . for us to hold that a legislature went beyond constitutional bounds in protecting the fetus, as New York has done, save when its continued existence endangered the life of the mother.”
There are at least five justices on the Court today who could learn a lot from Judge Friendly’s wisdom on this matter.


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