Skip to comments.Judge Henry J. Friendly's Unpublished Pre-Roe Abortion Opinion (Barbara K. Olson Memorial Lecture)
Posted on 11/29/2005 9:43:21 AM PST by dukeman
BARBARA K. OLSON MEMORIAL LECTURE
NOVEMBER 11, 2005
A. RAYMOND RANDOLPH CIRCUIT JUDGE UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT
It is good to look out and see so many old friends. But one is missing.
This is for Barbara.
It is well-known that Henry J. Friendly was one of the greatest judges in our nations history. Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion and his papers are now at the Harvard Law School, awaiting indexing. Tonight I want to make this opinion public for the first time.
I hope you will agree with me that Judge Friendlys draft of 35 years ago is not only penetrating, but prophetic. I have read my copy many times over the years. Not because our court hears abortion cases. In my 15 years on the D.C. Circuit I have not sat on a single abortion-rights case. I have read and reread my private copy because it embodies such a clear and brilliant message about the proper role of the federal judiciary, because it is timeless, because it is a classic in legal literature. After I share the opinion with you, I want to compare it with the Supreme Courts performance, from Roe v. Wade to Lawrence v. Texas.
Now for some history. In 1968, a few years after Griswold v. Connecticut, Roy Lucas, an assistant professor at the University of Alabama law school, wrote a law review article Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes. In his article, Lucas acknowledged that legislative efforts to reform state abortion laws were making headway in states across the country. But he had a quicker and easier way to get rid of the state laws through the federal courts. To accomplish this Lucas laid out a blueprint and proposed an innovation use Griswold and its penumbral right emanating from values embodied in the express provisions of the Bill of Rights to have the laws declared unconstitutional.
After his article appeared, Lucas founded an organization in Manhattan to advance his cause. He named it of all things the James Madison Constitutional Law Institute. For the next 4 years he was involved in nearly every case around the country challenging abortion laws, including finally Roe v. Wade.
Lucas chose to bring his first case in New York. The case was assigned to a three-judge district court. At the time, federal actions challenging the constitutionality of a state law were heard by panels consisting of two district judges and one court of appeals judge, with direct appeal not certiorari to the Supreme Court. Henry Friendly was drawn as the court of appeals judge. I was his law clerk.
There were several evidentiary hearings and a mountain of pleadings. Judge Friendlys customary practice was to discuss a case with his law clerk and then draft the opinion himself, with the clerk serving as editor. We had many conversations about the abortion case, but not once did the Judge mention his personal views about abortion and I never offered mine. That of course is how it should have been.
In the early spring of 1970, the Judge and his wife Sophie went off on a long-planned cruise through the Panama Canal. The abortion case must have been weighing on his mind. While on the cruise, without the benefit of a law library, he wrote in longhand a preliminary opinion and mailed it to chambers. The package arrived around the time President Nixon was nominating Harry Blackmun to the Supreme Court. The Judges secretary typed the draft in the usual triple spaced format and handed me a copy, together with a note from the Judge. In the note he said that during the cruise, his views on the case had crystallized his word and that if I found time hanging heavy I should start working on the draft. Judge Friendly added, in a note to all of us: The trip has been just fine. The ship is perfect, built for cruising and very modern. . . . The only rub concerns our fellow passengers. About two-thirds of them are Californians, and if I were in Rays shoes, Id think twice before settling there. [I was then considering this.] Most of them regard New York as a foreign city and their political views are somewhere to the right of Reagan. Yet they are well supplied with money many of them having taken the cruise both ways, a rather evident lack of imagination.
I did not make much headway on the Judges draft. Shortly after it arrived, the New York legislature amended the states abortion statute to allow abortion on demand during the first twenty-four weeks of pregnancy. The three-judge court dismissed the case as moot and no opinion issued.
In sharing Judge Friendlys draft with you I must ask for your patience. It was intended for the eye, not the ear, and I will have to summarize portions of it. But I will read some parts exactly as he wrote them because they have such an important bearing on the Supreme Courts continuing struggle with the problems he identified so long ago.
The Judge went straight to Lucass argument from Griswold. At first sight the Griswold decision would not seem to afford even a slender foundation for the plaintiffs superstructure. The Connecticut statute [struck down in Griswold] . . . was the most offensive form of anti-contraception legislation possible; it banned the use of contraceptive devices. Griswold, he thought, might rest on the obnoxious prospect of the police, as he put it, spying the marital couch, a prospect he thought extremely unlikely in any event.
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 Ill 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 Spencers Social Statics. No more did it enact J. S. Mills views on the proper limits of law-making.
I should pause here and briefly give you the theories of Spencer and Mill. In his dissent in Lochner v. New York to which Judge Friendly referred Justice Holmes summarized Herbert Spencers idea. [This year, by the way, marks the 100th anniversary of the once-repudiated Lochner v. New York, which found a violation of the Due Process Clause in New Yorks limitation on the maximum hours bakers could work.] As Holmes put it, Spencer laid down a principle in his book Social Statics that a person had the liberty . . . to do as he likes so long as he does not interfere with the liberty of others to do the same . . ..
John Stuart Mill, Spencers contemporary, proposed much the same idea in his book On Liberty, published in 1859. Mills harm principle, as it came to be known, was this 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.
Judge Friendly, after rejecting the notion that the theories of Mill and Spencer reflected constitutional law, turned to the evidence in the New York abortion case. The evidence dealt with the hardship to a woman who is carrying and ultimately bearing an unwanted child . . . [,] the plight of the unmarried mother, the problems of poverty, fear of abnormality of the child, the horror of conception resulting from incest or rape. These and other factors may transform a hardship into austere tragedy. Yet, even if we were to take plaintiffs legal position that the legislature cannot constitutionally interfere with a womans right to do as she will with her own body so long as no harm is done to others, the argument does not support the conclusion plaintiffs would have us draw from it. For we cannot say the New York legislature lacked a rational basis for considering that abortion causes such harm.
Even if we should put aside the interests of the father, negligible indeed in the many cases when he has abandoned the prospective mother but not in all, the legislature could permissibly consider the fetus itself to deserve protection. Historically such concern may have rested on theological grounds, and there was much discussion concerning when animation occurred. We shall not take part in that debate or attempt to determine just when a fetus becomes a human being. It is enough that the legislature was not required to accept plaintiffs demeaning characterizations of it. Modern biology instructs that the genetic code that will dictate the entire future of the fetus is formed as early as the ___ day after conception; the fetus is thus something more than inert matter. The rules of property and of tort have come increasingly to recognize its rights. While we are a long way from saying that such decisions compel the legislature to extend to the fetus the same protection against destruction that it does after birth, it would be incongruous . . . for us to hold that a legislature went beyond constitutional bounds in protecting the fetus, as New York has done, save when its continued existence endangered the life of the mother.
He continued: We would not wish our refusal to declare New Yorks 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 Friendly then predicted the issues that would arise if a court ruled the other way, issues that have plagued the Supreme Court ever since it did just that three years later in Roe v. Wade. For each of his points, I could drop a footnote citing one or more of the dozens of Supreme Court decisions that came after Roe.
Judge Friendly mentioned a large range of what he called policy choices for revising state abortion laws, including danger to the health of the mother, conception by incest or rape, and probable abnormality of the child. A legislature might, he said, decide to permit abortions whenever the mother was below . . . a certain age, whenever she was unmarried, when the parents could establish inability to care for the child, . . . etc. There is room also for considerable differences in procedures how far to leave the decision to the physician performing the abortion, how far to require concurrence by other physicians or, where appropriate, psychologists or social workers. One can also envision a more liberal regime in the early months of pregnancy and a more severe one in later months. There is also opportunity for debate, both on ethical and on physiological grounds, as to what is early and what is late. The legislature can make choices among these variants, observe the results, and act again as observation may dictate. Experience in one state may benefit others . . .. In contrast a court can only strike down a law, leaving a vacuum in its place. . . . [I]f we were to accept plaintiffs argument based on Griswold, we would have to condemn any control of abortion, at least up to the uncertain point where the fetus is viable outside the womb. We find no basis for holding that by ratifying the Fourteenth Amendment the states placed at risk of judicial condemnation statutes then so generally in effect and still not without a rational basis, however one may regard them from a policy standpoint.
Over the years, of course, the Supreme Court has treated each of these policy choices as if it were a matter of constitutional law. Roe left a vacuum to use Judge Friendlys word; the Court had no other law to apply except three words in the 14th Amendment -- due process and liberty.
Judge Friendly ended his draft with his view of the proper role of the federal judiciary. An undertone of plaintiffs argument is that legislative reform is hopeless, because of the determined opposition of one of the countrys great religious faiths. Experience elsewhere, notably Hawaiis recent repeal of its abortion law, would argue otherwise. But even if plaintiffs premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition . . . clearing the decks, [and] thereby enabling legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here.
To this Judge Friendly appended a note to me, to be inserted in an appropriate point. It read: Re abortion case If a woman has an absolute right to the destruction of a fetus, incapable of making a decision for itself, it would be hard to see why a man or woman does not have an absolute right to have his body destroyed. The discomfort of pregnancy and the pain of childbirth are surely not less [more?] than what often attends years of invalidism without hope of cure. The economic burdens of an added child readily avoidable if the parents wish are not of the same order or magnitude as the costs of many terminal illnesses, which may consume or exceed the savings of a lifetime and entail misery for a surviving spouse.
History is full of what ifs.
Over the years Judge Friendlys opinions and writings have had a profound effect on many areas of federal law. I have often wondered whether his New York abortion opinion, had it been published, might have made a decisive difference, on the lower federal courts where abortion cases were pending and, ultimately, on the Supreme Court. He too must have wondered. But years later he said that he was happy that the New York case had been mooted by the state legislature, because that is where he thought the issue belonged.
Griswold v. Connecticut has been much in the news lately, now that Supreme Court confirmation hearings are back, and I want to say a few more words about it. The author of the Courts opinion, Justice Douglas, denied that it rested on substantive due process. Justice Douglas, a New Dealer, had a vivid memory of Lochner and the mischief it caused until the court changed course in the late 1930's. In the interim, the court, relying on the Lochner analysis had struck down nearly 200 state and federal laws. Talk about super-precedents. And so Justice Douglass opinion avoided due process and invoked instead the First, Third, Fourth and Fifth Amendments, and penumbras and emanations from these provisions, from which he derived a constitutionally protected zone of privacy.
No one seriously supported the Connecticut law in Griswold. But there are many objections to Griswolds reasoning and no one has made them more dispassionately, courageously, and powerfully than Judge Robert Bork.
I want to register my own objection to the Griswold technique. Justice Douglas approached the Bill of Rights as if he were a common law judge dealing with a series of judicial decisions. The common law judge analyzes past judicial decisions, considers the reasons behind the decisions, comes up with a principle to explain the cases, and then applies that principle to a new case. This does not work with the Bill of Rights, and it does not work with legislation.
To illustrate, suppose I read the provisions of the Clean Air Act, which unfortunately I have to do on occasion. I decide that emanations from the Clean Air Act I am tempted to say emissions create a right to a pollution-free environment. And from then on I use this general right to a pollution-free environment to decide cases without regard to the language of the Clean Air Act.
The Griswold technique is identical. Some may object that the Constitution is different from a statute. After all, as Chief Justice John Marshall wrote, we must never forget that it is a Constitution we are expounding. Whenever someone took Marshall out of context like this, Alexander Bickel had a rejoinder: We must never forget that it is a blank check we are expounding.
At least the Griswold Court, near the end of the opinion, tried to tie the right of privacy to a specific provision of the Constitution the Fourth Amendment when it asked: Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? It was this aspect of Griswold which Judge Friendly focused in his draft.
Judge Bork did the same in his confirmation hearings in 1987. Here is one small example of what Judge Bork endured:
JUDGE BORK: Nobody ever tried to enforce [the Connecticut] statute, but the police simply could not get into the bedroom without a warrant, and what magistrate is going to give the police a warrant to go in to search for signs of the use of contraceptives? I mean it is a wholly bizarre and imaginary case. * * *
SENATOR: If they had evidence that a crime was being committed
JUDGE BORK: How are they going to get evidence that a couple is using contraceptives?
JUDGE BORK: Wiretapping?
JUDGE BORK: You mean to say that a magistrate is going to authorize a wiretap to find out if a couple is using contraceptives?
SENATOR: They could, could they not, under the law?
JUDGE BORK: Unbelievable, unbelievable.
On January 22, 1973, the Supreme Court handed down Roe v. Wade, fulfilling Roy Lucass dream just 5 years after his law review article appeared. Needless to say, the Courts opinion did not even come close to measuring up to Judge Friendlys rough draft. The heart of the Roe opinion is easy too easy to summarize. The Court cited Griswold, listed various provisions of the Bill of Rights that were said to create zones of privacy, and then simply announced that the constitutional right of privacy was broad enough to encompass a right to an abortion. And that was that.
The next day, the front page headline in the New York Times read: Supreme Court Settles Abortion Issue. I have yet to see a retraction.
Roe v. Wade was greeted with withering academic criticism, not only from those personally opposed to abortion, but also from those who thought abortion should be available. John Hart Elys article in the 1973 Yale Law Journal was devastating. Ely concluded that Roe is bad because it is bad law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be. Since then scarcely anyone has attempted to defend the Roe opinion.
Archibald Cox, no opponent of abortion, doubted that any reformulated opinion could ever be written to support the Supreme Courts result.
Over the years, there have been many attempts. Harvard Professor Laurence Tribe has made several. And just a few weeks ago a book appeared entitled What Roe v. Wade Should Have Said. The book contains mock opinions written by law professors. I have not read it yet.
Unlike Griswold, Roe explicitly embraced the concept of substantive due process to strike down the Texas abortion statute. Substantive due process is the idea that the Due Process Clause of the 14th Amendment protects rights even if they are not set out specifically in the Constitution. The Due Process Clause states simply that nor shall any State deprive any person of life, liberty, or property, without due process of law.
Given the theme of this conference, one must ask about the original meaning of these words.
The 14th Amendment due process clause is identical to the due process clause in the Fifth Amendment, applicable to the federal government. Two current Justices you may guess who they are think the phrase substantive due process is an oxymoron. Process means procedure, not substance and that is what it meant historically. That the due process clause ever came to apply to legislation, as it did for the first time in the infamous Dred Scott case, is strange enough. What is the process due from a legislature? A quorum? An accurate vote count?
There is something else I find quite odd about this concept. In many of the substantive due process cases the Court has stated that fundamental liberties are protected. Roe v. Wade is an example. Freedom of religion is, by all accounts, a fundamental liberty. Are we to suppose that freedom of religion is a right the state can take away so long as it does so with due process? That would be protecting a civil right in one amendment, the First, only to allow it to be taken away through another. The Framers were smart people; they could not have intended such an absurdity.
And they did not.
History shows that the meaning of liberty as used in the 5th and 14th Amendments is simply freedom from restraint that is, imprisonment. This explains why the Framers placed the due process clause in the Fifth Amendment, which deals almost entirely with criminal proceedings.
Learned Hand, found the historical evidence supporting this interpretation clear beyond in his words any reasonable doubt. Yet the chances of the Supreme Court going back to the original understanding are, I think, slim to none. As Judge Friendly anticipated before Roe v. Wade, and as many critics of the opinion have noted since, it is exceedingly difficult to see abortion as a right of privacy, even if such a right might be found in the Due Process Clause. Privacy deals with preserving seclusion, or with keeping personal information secret.
Although the Constitution does not use the term privacy, it is fair to say as Judge Bork did in his hearings that portions of First, Fourth Amendment and Fifth Amendments deal in certain, specific ways with protecting seclusion and secrecy. This still leaves the question why abortion is a right of privacy. Among its many faults, the opinion in Roe v. Wade never even attempted to supply an answer.
Over the years many people, lawyers and non-lawyers alike, have come around to Judge Friendlys view that abortion is not about privacy. Only last month, Richard Cohen, a thoughtful columnist for the Washington Post who does not oppose abortion, wrote that the very basis of the Roe decision now strikes many people as faintly ridiculous. He continued: As a layman, its hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is. [Oct. 20, 2005 column]
The Court itself may have entertained similar doubts. In cases after Roe, a subtle change took place. The Court began stressing that the privacy involved was a womans private decision to have an abortion, with the Court often italicizing the word decision. But this explanation could not hold for long. It was not the decision to have an abortion that was at stake in Roe. It was the carrying out of that decision. People make all kinds of decisions in private. One person may privately decide to rob a bank. Another may decide in private to smoke crack cocaine. Someone else may decide to commit suicide, or to give a speech. That the decision is made in private says nothing about whether the person is exercising a constitutional right in carrying out the decision. Maybe the Court realized as much. For whatever reason, the right of privacy, as first conceived Griswold, no longer drives the Supreme Court in substantive Due Process cases, even in those involving abortion.
In more than a decade, the Court has not decided a single case on the basis of a general right of privacy. Little appreciated, lost in the rhetoric of privacy, a transformation has occurred. Griswold and Roe have morphed.
Griswolds zone of privacy for married couples and Roes right of privacy for women in matters of abortion have become everyones right to do as he or she pleases so long as there is no harm to others. This is the principle of John Stuart Mill and Herbert Spencer, a principle Judge Friendly rejected, as had Justice Holmes in his Lochner dissent. You would not know any of this from the Supreme Court confirmation hearing held last September, the first such hearing in 11 years. It was as if nothing had changed. The old questions were dusted off and asked again. Does the nominee believe the 14th Amendment protects a right of privacy? Was Griswold v. Connecticut, with its penumbras and zones of privacy, correctly decided? Is a womans right of privacy, as recognized in Roe v. Wade, settled law? And so forth.
Most of the commentary and the press releases and the sound bites about Griswold and Roe were along the same lines.
All of this missed the major transformation that started in the mid-1980's. The Court majority began framing the constitutional right involved in Roe not simply in terms of a private decision but in terms of individual dignity and autonomy.
Planned Parenthood v. Casey, handed down in 1992, was the watershed. The joint opinion of Justices OConnor, Kennedy and Souter described Roe as resting on a rule (whether or not mistaken) of personal autonomy and bodily integrity . . .. The opinion repeated several other times that personal dignity and autonomy were central to the liberty protected by the Fourteenth Amendment Justice Blackmun, in his concurring opinion, picked up on the theme. He re-framed his opinion in Roe as one resting on decisional autonomy.
Some thought the 1997 decision in Washington v. Glucksberg, the case rejecting a constitutional right to assisted suicide, put an end to the personal autonomy rationale. The Court rejected the idea that just because many of the rights protected under the Due Process Clause could be characterized as sounding in personal autonomy, any and all important, intimate, and personal decisions are so protected. Rather, any new Due Process right of this sort had to be firmly rooted in this countrys history and traditions. This at least gave the appearance and the hope that, in the guise of due process, the Court was not simply making it up.
But two years ago the Court turned its face from Glucksberg. Texas had a law making homosexual sodomy a Class C misdemeanor, a traffic ticket, punishable by a fine only. The Supreme Courts opinion in Lawrence v. Texas held that the Texas law violated the Due Process Clause. The Court therefore overruled Bowers v. Hardwick, thus adding to the long list of cases the Supreme Court has overruled.
Lawrence not only tossed out the analytical framework of Glucksberg, it contradicted a host of other precedents dealing with the States police power, precedents dating back to the 1800's. The Congressional Research Service, by the way, reports that through the October 2003 Term, the Supreme Court has overruled 324 of its past decisions, in whole or in part. So much for stare decisis.
Without mentioning Glucksberg or any of its state police power cases, Lawrence created a new constitutional right to engage in homosexual sodomy, at least if this were not done in a public square. Autonomy was back.
Lawrence is full of rhetoric having only a remote connection to the facts of the case, and no clear connection to anything in the Constitution. After quoting the autonomy language of Casey, the Lawrence Court said this: Liberty presumes an autonomy of self and the instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
The law schools greeted the Lawrence decision with cheers. Among the professors there were only a handful of detractors, the most notable being Nelson Lund and John McGinnis. In their Michigan Law Review article, Lund and McGinnis did for Lawrence v. Texas what John Hart Ely had done for Roe v. Wade.
Professor Tribe once again offered an alternative basis for decision. In the Harvard Law Review, he proposed putting Lawrence on First Amendment grounds. After all, he wrote, the First Amendment protects the right to peaceably assemble and those terms [should be taken] in their most capacious sense to include the right to engage in homosexual sodomy. He then explained: For what are speech and the peaceful commingling of separate selves but facets of the eternal quest for such boundary-crossing for exchanging emotions, values, and ideas both expressible in words and wordless in the search for something larger than, and different from, the merely additive, utility-aggregating collection of separate selves? Got it?
The actual Lawrence opinion confirms Judge Friendlys insight into the true nature of controversies of this sort. The general rule, the Lawrence Court wrote, is against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person . . . This is John Stuart Mill writ large. The Court repeated the same theme later in its opinion, emphasizing that the case did not involve persons who might be injured or coerced a statement nicely blending Mills no-harm-to-others principle with Herbert Spencers Social Statics. The Court also cited with approval the Model Penal Code, which opposed punishing private conduct not harmful to others. No matter that the Model Penal Code was a call for legislation and did not purport to represent an interpretation of the Constitution.
Judge Friendly wrote in his draft that the 14th Amendment did not enact Mills On Liberty. Lawrence v. Texas ruled otherwise. Supreme Court decisions command compliance, they do not command agreement and on this question, I side with Henry Friendly. Consider the historical evidence. Mill, writing in 1859, discussed Mormons in Utah practicing polygamy, and why, according to his principle, they were entitled to do so. Congress did not agree. Congress refused Utah statehood because it allowed polygamy and in 1862, only a short time before sending the 14th Amendment to the States for ratification, Congress passed a law outlawing polygamy in the Territories. To suppose that the 14th Amendment incorporated Mills principle, one would have to believe that at the same time Congress was telling Utah to abolish polygamy, it was sponsoring an amendment that would make any such state law unconstitutional. To quote a famous American, Unbelievable. Unbelievable.
At one time, the Supreme Court did not believe it either. Paris Adult Theatre, an opinion for the Court by Chief Justice Burger, cited Mill and then expressly rejected his harm principle as basis for deciding a constitutional issue. The Court held that the Constitution did not incorporate the proposition that conduct involving consenting adults only is always beyond state regulation, thus echoing Holmess Lochner dissent.
What was the response to this precedent in Lawrence? Silence. The Court did not even cite the case. Among the Courts failings in Lawrence was its inability to see, or if it saw, to admit, the many problems Mills principle raises. What kind of harm to others should be recognized? Why should a legislature be forbidden from legislating on the basis of morality? Is that even possible?
Judge Friendly, in a portion of his draft opinion that I condensed, mentioned the debate on Mills theory in the 1950's between Lord Devlin and H.L.A. Hart in England, a debate triggered by the Wolfenden Report on homosexual sodomy. The Lawrence Court invoked the Wolfenden Report, which urged Parliament not the courts to enact reforms.
When Mill talked about the absence of harm to others, and when the Supreme Court did the same in Lawrence, who exactly are the others they have in mind? The Court assumes that the others are only those living now. But what of the unborn and the generations that will follow us? They will be affected by the society we leave behind. I know of no principled reason to exclude them from consideration, even if Mills principle reflected constitutional law. And neither did Judge Friendly.
You may recall that after stating the Mill principle, the Judge confronted it on its own terms. He wrote that even if the harm principle were constitutional law, the State had made a rational judgment in treating the fetus as an other worthy of protection. On Judge Friendlys reasoning, Lawrence, by aligning itself with Mill, has therefore undermined the foundation of Roe v. Wade a supreme irony. Mills principle, and the Courts adoption of it, moves in the direction of radical autonomy. Some on the left, and some libertarians, welcome this.
The Lawrence Court denied that it was imposing its own moral code. But autonomy is itself a moral value and it is one that tends to crowd out other values. As Jennings and Gaylin point out in their book The Perversion of Autonomy, [a]utonomy now preempts civility, altruism, paternalism, beneficence, community, mutual aid, and other moral values that essentially tell a person to set aside his own interests in favor of the interests of other people or the good of the community.
If I were a legislator I might well go along with Mill and Spencer sometimes. Mill believed that his theory would allow not only polygamy, but also prostitution and some group activities among consenting adults, which I will not go into. I might vote for repealing sodomy laws, but not the laws against these other activities. Legislators do not have to be logically consistent in their votes. Nor do they have to extend their dictates to their logical conclusions. It is another matter entirely for the Supreme Court to make the Mill/Spencer philosophy a tenet of constitutional law which is exactly the point of Holmess dissent in Lochner.
The Lawrence Court never even acknowledged its countless decisions, dating back to the 1800's, which held that a States power to regulate its police power extended not only to the health, safety, and welfare of its citizens, but also to matters of morality. Even Lochner recognized this. Yet the Lawrence Court, ignoring this huge body of precedent, declared: the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . .. This is a shocker, or should have been.
No one can safely predict what the Court will do with its earlier decisions upholding state laws against polygamy and bigamy; against prostitution; against gambling and alcohol use; against obscenity. The law, the Court wrote in Bowers, is constantly based on morality. And indeed it is. How else to explain not only the laws just mentioned and those cited in Judge Friendlys draft, but statutes prohibiting bestiality, voluntary self-mutilation, dueling, sadism, assisted suicide, bear-baiting, cockfighting, cruelty even to your own animals in your own home, and so forth?
Justice Scalia wrote a powerful dissent. The Lawrence majority responded by ignoring the dissent, a practice which unfortunately is becoming more common. In the two years since Lawrence, the Supreme Court has not cited the case, even once. The High Court has a distinct advantage. It can control its docket. After an upheaval, it can take a breather. But the lower courts, state and federal, have no such luxury. They we must grapple with what the Supreme Court has handed us.
Throughout the country, in case after case, Lawrence and the reformulated Griswold and Roe are now being used in efforts to strike down a vast array of laws, some with deep historical roots. Lawrence is invoked in suits seeking to force states to recognize homosexual marriage. It is used as a defense to obscenity prosecutions; and to attack laws against pedophelia; adoption of children by homosexuals; prostitution; polygamy; sex offender registration; statutory rape; and the militarys dont-ask-dont-tell policy. A note in the Harvard Law Review plausibly relies on Lawrence to argue that there is a constitutional right to use marijuana for medicinal purposes. And a law professor has written a lengthy article using Lawrence to claim that laws outlawing consensual sex between a teacher and student in a state university are invalid under the Due Process Clause.
Most of these efforts have not been successful yet. But where it will lead is anyones guess.
The joint opinion in Casey, in a sentence the majority opinion in Lawrence adopted, wrote: At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Judge Bork had this comment: This is not an argument but a Sixties oration. It has no discernible intellectual content; it does not even tell us why the right to define ones own concept of meaning includes a right to abortion or homosexual sodomy but not a right to incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity and autonomy.
The Courts talk about the mystery of life brings to my mind the three great questions: Who am I? Why am I here? Where am I going? All courts, the Supreme Court included, need to ask themselves the same questions.
Hey, thanks for bumping. It's a long read, but I think it's worth it.
Later = ping
I need help from freepers.
A California Congresswoman (Boxer?) made remarks about not only a woman's right to choose, but a woman's right to change her mind 30 days after giving birth. And she wasn't talking about adoption after the baby was born.
Does anyone have information on that?
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