Before there was Roe, there was Judge Friendly

The attacks by liberal Democrats and interest groups on Judge Samuel Alito continue unabated for his strategy-- which he formulated 20 years ago while employed with the Reagan administration --for bringing about the eventual overruling of Roe v. Wade. Naturally, a judge should keep an open mind when deciding a case, but he/she need not leave experience at the chamber door.

An unbiased media would question why pro-abortion-rights Democrats are acting as if Roe and related cases have settled the issue of whether the right to pregnancy termination is a firmly-established constitutional right. Roe (as salvaged by Planned Parenthood v. Casey) is good precedent, but highly questionable constitutional law-- one must either check one's brain at the door to accept the theory underlying Roe or construct convoluted justifications for the result-oriented decision that Roe was. In short: One can be rabidly pro-choice and still be scathingly critical of Roe. But such a person usually carries the label "constitutional scholar," not "Senator."

On November 11, at the Federalist Society's Annual Barbara Olson Memorial Lecture, Judge Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit (pictured above) delivered a speech that concluded with thunderous and sustained applause. (View the full text of the speech here.)

Judge Randolph recounted in detail his experience as a law clerk for Judge Henry J. Friendly of the Second Circuit Court of Appeals in 1970, three years before Roe v. Wade. Judge Friendly sent to chambers a draft of an opinion that would have issued in the first major abortion rights case to hit the federal appellate courts. The New York state legislature acted to loosen its abortion laws, resulting in a premature, er, abortion of the case.

Judge Friendly's opinion was never released.... until Judge Randolph read portions of it on November 11. What if the opinion, which found no constitutional right to abortion, had been issued? Might it have influenced justices of the Supreme Court, causing some to pause and consider the magnitude of the Roe case and reconsider the strength of its reasoning? Would the country have been spared the ignominy of the current politicized Supreme Court nominee hearings?

While the entire speech is worthy of consumption, a couple of passages from Randolph's speech should be highlighted:

Judge Friendly viewed abortion as another matter entirely, 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 . . ..”

The Judge then moved to what he saw as the heart of the plaintiffs’ 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.” As I’ll discuss in a moment, the Supreme Court, knowingly or unknowingly, has now embraced this concept as a matter of constitutional law. Judge Friendly would have none of it.

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.”

Later, Judge Randolph reads:

He 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.”

Judge Alito is distancing himself from his intellectually-honest assessments of Roe v. Wade as being bad constitutional law, which he expressed 20 years ago. Democratic Senators, eager for any opening they can find to bring the nomination within striking distance, are pouncing on Alito for supposedly being disingenuous. But some Senators display an absolute intolerance of anyone who disagrees that abortion is a constitutional right. We ought to call them pro-abortion-rights fundamentalists. In the face of this anti-intellectualism and fundamentalism, judicial nominees can hardly be blamed for playing senatorial-like games.

Judge Alito might follow Roe as precedent and uphold the right to abortion. Or he might not. But either outcome is well within the confines of defensible constitutional law.