Judge Friendly's Abortion Opinion:

Judge Raymond Randolph delivered this year's Barbara Olson lecture at the Federalist Society's National Lawyers' Convention Friday night. The speech centered on Judge Henry Friendly's opinion in a suit challenging New York's abortion prohibition in 1970 -- an opinion that Judge Friendly drafted but that was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly's clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power -- and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Judge Randolph's speech was, to my knowledge, the first time the existence of the never-issued draft was revealed. Perhaps it will now be published somewhere for scholarly scrutiny. As described by Judge Randolph, it sounded like an interesting and insightful opinion -- just what one would have expected from Judge Friendly.