December 1, 2005
The Abortion Argument We Missed
WASHINGTON -- Henry
J. Friendly, who died in 1986, was perhaps the most distinguished
American judge never to serve on the Supreme Court, and he almost
spared the nation the poisonous consequences of that court's 1973
truncation of democratic debate about abortion policy. The story
of that missed blessing was told recently by Judge A. Raymond
Randolph of the U.S. Court of Appeals for the D.C. Circuit, in
an address to the Federalist Society.
Friendly, then on the Court of Appeals for the 2nd Circuit, was
a member of a three-judge panel that heard the first abortion-rights
case ever filed in a federal court, alleging the unconstitutionality
of New York's abortion laws. Friendly wrote a preliminary opinion
that was never issued because, in that pre-Roe era, democracy
was allowed to function: New York's Legislature legalized abortion
on demand during the first 24 weeks of pregnancy, causing the
three-judge panel to dismiss the case as moot.
In 1965, the Supreme
Court, citing a constitutional right to privacy, struck down a
Connecticut law criminalizing the use of contraceptives. In 1968,
a University of Alabama law professor, although acknowledging
that legislative reforms of abortion laws were advancing nationwide,
suggested a route to reform -- judicial fiat -- that would be
quicker and easier than democratic persuasion. The tactic would
be to get courts -- ideally, the Supreme Court -- to declare,
building on the Connecticut case, that restrictions on abortions
violate a privacy right that is a ``penumbral right emanating
from values'' embodied in various provisions of the U.S. Constitution,
as applied to the states through the 14th Amendment.
Which is what the
Supreme Court did in 1973. But in 1970, when that argument reached
Friendly, he warned in his preliminary opinion about the argument's
``disturbing sweep,'' and its invitation to judicial imprudence.
The assertion of
such a privacy right would, he said, invalidate ``a great variety''
of statutes that existed when the 14th Amendment was adopted --
e.g., those against attempted suicide, bestiality, even drug use.
And, Friendly wrote, it would be rash to suddenly find that the
Constitution is an absolute impediment to the New York Legislature's
deciding that a fetus deserves some protection. Declining to join
the debate about when a fetus becomes a human being, Friendly
wrote: ``It is enough that the legislature was not required to
accept plaintiffs' demeaning characterizations of (the fetus),''
which is ``something more than inert matter.'' 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.''
Three years later,
the Supreme Court turned all policy choices about abortion --
even such details as spousal notification -- into matters of constitutional
law. Who now really thinks that this exploitation of what Friendly
called ``the vague contours of the 14th Amendment'' was wise?
after Roe was decided, The New York Times called
it a ``resolution'' of the abortion issue. Not really. Roe
short-circuited a democratic process of accommodating abortion
differences -- a process that had produced a larger increase in
the number of legal abortions in the three years before
Roe than would occur in the three years after.
Since 1973, the privacy
right has, as Judge Randolph says, ``morphed.'' Its original constitutional
meaning pertained to preserving personal seclusion and keeping
personal information secret. Now it means personal autonomy --
everyone's right to do whatever he or she pleases so long as others
are not harmed.
has a distinguished pedigree. John Stuart Mill wrote in ``On Liberty''
(1859): ``The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is
to prevent harm to others.'' That libertarian doctrine is, Randolph
says, a defensible position for a legislature to take, but nothing
in the Constitution's history or text suggests that Mill's philosophy
In the polarized post-Roe politics, many Democrats are
now poised to oppose the confirmation of Sam Alito on the ground
that abortion rights, unlike all other rights (to free speech,
private property, etc.), must be utterly unrestricted. Because
Americans recoil from such immoderation, Democrats, after three
decades of political difficulties, have reason to believe, if
not the reasonableness to recognize, that they, especially, would
have been better off if Friendly's preliminary opinion had been
issued and if it had spared the nation Roe's diminishment
of democracy and embitterment of politics.
2005, Washington Post Writers Group