Some Friendly Advice on Abortion and Judicial Activism

W ith oral argument approaching this week in Dobbs v. Jackson Women’s Health Organization, it is fitting to take a moment to consider what might have been had the Court in Roe v. Wade taken the view of the legendary Judge Henry J. Friendly of the Second Circuit. In 1970, three years before Roe, Friendly drafted an opinion in an abortion case that came before him. Its contents would not be known for many years because the case was mooted by the New York legislature, and the draft opinion waited more than 35 years to be published by Friendly’s law clerk, A. Raymond Randolph, who would go on to distinguished judicial service on the D.C. Circuit. (Chief Justice John Roberts clerked for Judge Friendly a decade after Randolph.)

The lawsuit was filed by law professor Roy Lucas, who sought a “quicker and easier way” than the legislative process to do away with state abortion laws by way of federal courts. His legal argument for doing so was to use the Supreme Court’s language in Griswold v. Connecticut (1965) about what Lucas called the “penumbral right emanating from values embodied in the express provisions of the Bill of Rights” to have the laws declared unconstitutional. Friendly heard the case on a panel with two district judges according to the procedure of the time, under which federal actions challenging the constitutionality of a state law were heard by three-judge panels with direct appeal — not certiorari — to the Supreme Court.

Friendly did not buy into the notion that Griswold’s freewheeling language, which occurred in the context of contraception use by married couples, somehow authorized the Court to strike down laws such as New York’s at the time protecting fetal life:

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, and there was much discussion concerning when “animation” occurred. 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. Modem biology instructs that the genetic code that will dictate the entire future of the fetus is formed 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 in their face 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.

Friendly continued,

We would not wish our refusal to declare New York’s abortion law unconstitutional as in any way approving or “legitimating” it. The arguments for repeal are strong; those for substantial modification are stronger still. . . . But the decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges.

This argument on its face does not purport to be that of a pro-lifer. It suggests that Friendly might have wanted to liberalize New York’s abortion law if he were a legislator. But he was a judge and recognized that his sole obligation was to interpret the Constitution. For Friendly, the 14th Amendment’s ratification did not place states at risk of the judicial invalidation of laws that set different “policy choices,” such as whether to

permit abortions whenever the mother was below (or above) a certain age, whenever she was unmarried, when the parents could establish inability to care for the child, when there were already more than a certain number of children in the household, etc. There is room also for considerable differences in procedures—how far to leave the decision to the physician performing the abortion, how far to require concurrence by other physicians or, where appropriate, psychologists or social workers. One can also envision a more liberal regime in the early months of pregnancy and a more severe one in later months. There is also opportunity for debate, both on ethical and on physiological grounds, as to what is early and what is late. The legislature can make choices among these variants, observe the results, and act again as observation may dictate.

Of course, in Roe and its progeny, most notably Planned Parenthood v. Casey (1992), but also in numerous other cases as recently as June Medical Services L.L.C. v. Russo (2020), the Supreme Court ignored that advice. It acted like a medical board charged with micromanaging every last abortion regulation, in the process discrediting itself as an institution and doing more than it had done in any other line of cases to poison the judicial-nomination process.

Friendly’s draft opinion was prescient. It not only recognized the primacy of the democratic process in deciding an issue about which the Constitution is silent but also predicted that it would discredit the Court if it went the other direction on this issue:

The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition . . . clearing the decks, thereby enabl[ing] legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920’s and 1930’s. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here.

To read Judge Friendly’s draft is to see a course not taken by the courts and to regret the destructive consequences that came when the Supreme Court went in an entirely different direction. Those consequences still afflict the judiciary and the democratic process today, which is why Roe needs to be overturned.