Before Roe V. Wade: Judge Friendly's Draft Abortion Opinion

Article excerpt

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. …