Before Roe V. Wade: Judge Friendly's Draft Abortion Opinion‪.‬

It is well known that Henry J. Friendly was one of the greatest judges in our nation's history. (1) 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, (2) 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 share the opinion with you. I hope you will agree with me that Judge Friendly's draft of thirty-five 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 fifteen 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 give the opinion to you, I want to compare it with the Supreme Court's performance, from Roe v. Wade to Lawrence v. Texas. (3)