September 29, 2014

Even though my subject is Justice Lewis F. Powell’s vote with the majority in Roe v. Wade, I begin with a few words about the late United States Circuit Judge Henry J. Friendly. Judge Friendly is widely regarded as one of our most distinguished jurists. What many may not know is that he authored a draft opinion “in the first abortion-rights case ever filed in a federal court.” The opinion was never issued because the case in question, Hall v. Lefkowitz, a challenge to New York’s abortion statute, was dismissed as moot when New York’s approach to abortion was significantly liberalized in 1970.

Judge Friendly’s law clerk at the time, now Senior United States Circuit Judge Raymond Randolph, has published an article that contains Friendly’s draft opinion. The short opinion is well worth reading. Friendly believed there was a large gulf between Griswold v. Connecticut, which accorded privacy protection to contraceptive use within marriage, and the argument that privacy doctrine also affords a right to destroy a fetus. To him, Griswold did “not seem to afford even a slender foundation” for the challenge to New York’s abortion statute. “A holding that the privacy of sexual intercourse is protected against governmental intrusion scarcely carries as a corollary that when this has resulted in conception, government may not forbid destruction of the fetus.” Almost ten years later, Judge Friendly reaffirmed his view that Griswold provided “no real precedential support” for the decision in Roe. The Court gave “no real answer to the argument that the state’s interest in preserving the fetus was alone a sufficient justification for drastic limitation of abortions. The invocation of a ‘right of privacy’ was not convincing.”

To Judge Friendly, abortion was a public policy dispute that “must be fought out through the democratic process.” He suggested that had he been a legislator, he would have favored more liberal abortion laws. But, as a judge, he saw no basis for holding that the States, in ratifying the Fourteenth Amendment, “placed at risk of judicial condemnation [abortion-restricting] statutes then so generally in effect and still not without a rational basis, however one may regard them from a policy standpoint.” He “simply [could not] find . . . anything” in the Amendment’s “vague contours” to prohibit New York’s restrictive statute.

Judge Randolph writes that he has often wondered whether Friendly’s views, if published, would have influenced other lower federal courts with pending abortion cases and perhaps even the Supreme Court itself. I am puzzled in a different way: Why did Justice Lewis Powell not write something akin to Friendly’s opinion as a dissent in Roe v. Wade? Part II, after showing that Powell’s Roe vote was surprising, will demonstrate that no satisfactory explanation has yet been offered. Part III argues that Powell’s vote negatively impacts his legacy.