Pre-Roe Decisions

As I discussed recently, Judge Raymond Randolph recently revealed that Judge Henry Friendly -- one of the most famous and respected judges of the 20th century -- had written an opinion prior to Roe that upheld New York's anti-abortion law. Randolph's speech is now publicly available. As Randolph wondered:

History is full of “what ifs.” Over the years Judge Friendly’s 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.

As it happens, the Supreme Court was actually influenced by another lower court decision. This is from an article by David Garrow reviewing a recent book titled What Roe v. Wade Should Have Said:

Almost equally surprising is the complete failure of all the contributors to evince any awareness at all of the one particular lower-court abortion opinion that indisputably had a major influence upon the Supreme Court’s own private deliberations about how to decide Roe and Doe. That opinion, by Judge Jon O. Newman on behalf of a special three-judge federal court in the Connecticutcase of Abele v. Markle,¹² had a decisive effect on the thinking of Justice Lewis F. Powell¹³ and had a similarly significant impact upon Justice Potter Stewart.¹⁴ In particular, Judge Newman’s analysis of how abortion-law analysis should focus upon the concept of fetal viability was the subject of an especially influential private letter that Powell sent to Harry Blackmun.¹⁵ In the wake of that letter, Blackmun included reference to Newman’s analysis in a memorandum to all of his colleagues about his draft opinions in Roe and Doe,¹⁶ and Blackmun’s final Roe opinion included two citations to Newman in its text.¹⁷