The Right Coast

November 11, 2005
In the Beginning, There Was Roe v. Wade ...
By Gail Heriot

Well, not really. Indeed, I learned this evening about a pre-Roe abortion case decided by a three-judge panel in a federal district court in New York. If you're wondering why you've never heard of this decision, you can stop wondering: The New York Legislature legalized abortion while the case was pending, thus mooting the case. The draft opinion was therefore never completed and published.

I learned about the case at the Fifth Annual Barbara K. Olson Memorial Lecture, which was delivered by Judge A. Raymond Randolph this evening here in Washington. Among Judge Randolph's many distinctions, he was a law clerk to Judge Henry Friendly while Friendly served on the panel. It was Friendly who had written the draft opinion.

Judge Randolph reported that Judge Friendly did not discuss with him his own personal views on abortion. And rightly so. That's wasn't the issue before the court. This issue was whether the New York legislature could prohibit abortion if it thought it appropriate to do so. And it should surprise no one that the draft opinion would have upheld New York's authority. Judge Friendly, who produced the draft while on a cruise that took him through the Panama Canal, wrote in the style of Oliver Wendell Holmes. Just as "the Fourteenth Amendment [did] not enact Mr. Herbert Spencer's Social Statics," it did not enact John Stuart Mill's Harm Principle (and even if it did, that principle is not at issue in the case, since, according to Friendly, a legislature could permissibly consider the interests of the fetus in deciding whether to enact a prohibition on abortion). Friendly's draft opinion pointed out that that any contrary rule "would have a disturbing sweep." Law against suicide, homosexuality, bestiality, and polygamy would also be suspect.

Would the world have been any different had the Friendly opinion been published before Roe? Perhaps not. But if newspaper editors had read the Friendly opinion, they might have been less inclined to write headlines like "Supreme Court Settles Abortion Issue" back in 1973. They might have better understood the can of worms that had been opened.