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.

In 1970, 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?

The day 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 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.

That idea 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 is
mandatory.

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.