Two months ago Judge A. Raymond Randolph of the United States Court of Appeals for the District of Columbia Circuit delivered a speech to the Federalist Society in Washington on the late Judge Henry Friendly's draft opinion in a 1971 case challenging New York's laws against abortion. Here is the text of Judge Randolph's speech. Judge Randolph was Judge Friendly's law clerk at the time and has saved the draft over the intervening years. Judge Friendly rejected the arguments that the New York statute was unconstitutional. But before the decision could come down, the New York legislature wrote a new law allowing abortions during the first 24 weeks of pregnancy. The case was dismissed as moot.
Judge Friendly had and has a reputation as one of the greatest Court of Appeals judges in American history, and his name is often linked with that of Learned Hand at the top of the list of judges who never served on the Supreme Court but should have. Under the rules then obtaining, any appeal from the decision of Judge Friendly and his two colleagues on this three-judge court would have gone directly to the Supreme Court just at the time it was considering what would become of Roe v. Wade. Would a majority of the Supreme Court have concurred in Justice Harry Blackmun's opinionlong criticized not only by conservatives but by liberals as unpersuasive and unrooted in constitutional textif they had had Friendly's opinion before them? Read Judge Randolph's gracefully written speech and decide for yourself. You can probably guess what my answer is.
It's hard to overestimate how much of the political history of the past 33 years would be different if Judge Friendly's view had prevailed. Restrictions on abortion would have been reduced by state legislatures, as they already were before Roe was handed down in January 1973. Already 14 states with 41 percent of the nation's population had liberalized their abortion laws; 75 percent of the nation's population lived within 100 miles of one or more of those states. And in January 1973, almost every state legislature was going into session. Absent Roe, abortion would have remained a state issue and would not have played an important role in national politics. Instead, we have what we have.