Hall v. Lefkowitz was a court case on November 4, 1969 during which Roy Lucas, an assistant professor at the University of Alabama Law School, and his self-founded James Madison Constitutional Law Institute, sued to challenge New York's abortion laws. A three-judge court presided which included famous judge Henry Friendly. Friendly wrote a draft opinion in the spring of 1970 declaring government had right to regulate abortion and protect a fetus, contrary to the later Roe v. Wade ruling. However, shortly thereafter the New York legislature amended state abortion law to allow abortion within the first 24 weeks of pregnancy, and Friendly's case was dismissed as unnecessary.
Judge Friendly's Draft Opinion
|“|| JUDGE HENRY J. FRIENDLY’S DRAFT OPINION IN Hall v. Lefkowitz*
Plaintiffs’ strongest argument rests on an attempted extrapolation of Griswold v. Connecticut, ___ U.S. ___ (___), which recognized a protected area of privacy into which the state cannot enter.
At first sight the Griswold decision would not seem to afford even a slender foundation for the plaintiffs’ superstructure. The Connecticut statute there held invalid was the most offensive form of anti‐contraception legislation possible; it banned the use of contraceptive devices. To be sure it was scarcely likely that, as suggested in Mr. Justice Douglas’ opinion, ___ U.S. at ___, the state would seek to enforce the statute by spying the marital couch—a method which, apart from weightier considerations of human dignity, would be of scant effectiveness with respect to methods of contraception now in general use. Acquisition of contraceptives would evidence an intention to use them, and repeated acquisition the actuality. Still such proof by the state would require the defendant to testify with respect to conduct which the Court regarded as so private as to lie beyond government’s right to inquire. Even that position enlisted the support of only ___ of the Justices, and these differed widely as to the rationale.
A holding that the privacy of sexual intercourse is protected against governmental intrusion scarcely carries as a corollary that when this has resulted in conception, government may not forbid destruction of the fetus. The type of abortion the plaintiffs particularly wish to protect against governmental sanction is the antithesis of privacy. The woman consents to intervention in the uterus by a physician, with the usual retinue of assistants, nurses, and other paramedical personnel, indeed the condition calling for such intervention may very likely have been established by clinical tests. 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 or even her doing so herself.
Plaintiffs say that to confine Griswold to the protection of marital privacy is to read the case too narrowly. They regard it as having established a principle 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.
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 (at least when this is between consenting unmarried adults), bestiality, and drunkenness unaccompanied by threatened breach of the peace. Much legislation against the use of drugs might also come under the ban.
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. _____ years 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 Spencer’s Social Statics. No more did it enact J.S. Mill’s views on the proper limits of law‐making.
One would have to be insensitive indeed not to be deeply moved by the evidence the plaintiffs have presented. Testimony is scarcely needed to understand the hardship to a woman who is carrying and ultimately bearing an unwanted child under the best of circumstances. The evidence shows how far circumstances often are from the best. It stressed 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 woman’s 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 in their face 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.
We would not wish our refusal to declare New York’s abortion law unconstitutional as in any way approving or "legitimating" it. The arguments for repeal are strong; those for substantial modification are stronger still. Apart from the humanitarian considerations to the prospective mother that we have outlined, the state’s interest with respect to abortion would seem very much less in an era when the birth rate constitutes perhaps the most serious single danger to society than when a young nation needed people for its development. But the decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges.
Policy choices with respect to abortion are not limited to drastic prohibition like New York’s on the one hand or complete freedom on the other. One variant is a liberalization of grounds. Here there are subvariants. The proposal in the American Law Institute’s Model Penal Code, which includes danger not only to the life but to the health of the mother, conception as a result of incest or rape, and probable abnormality of the child, is the best-known example. A legislature might decide to enlarge upon this list. It might permit abortions whenever the mother was below (or above) a certain age, whenever she was unmarried, when the parents could establish inability to care for the child,when there were already more than a certain number of children in the household, 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; this is conspicuously an area for application of Mr. Justice Brandeis’ view that the Fourteenth Amendment should not be so utilized as to prevent experimentation in the laboratories of the several states. In contrast a court can only strike down a law, leaving a vacuum in its place. To be sure, when it does this, it may sometimes be able to indicate how the legislature may remodel the statute to conform it to constitutional requirements. [Cite instances, e.g., FELA, obscenity, wiretapping]. But if 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.
An undertone of plaintiffs’ argument is that legislative reform is hopeless, because of the determined opposition of one of the country’s great religious faiths. Experience elsewhere, notably Hawaii’s 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 of what plaintiffs assume but we cannot know to be a minority and thus clearing the decks, thereby enable legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many highminded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920ʹs and 1930ʹs. 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.
- "Hall v. Lefkowitz." 305 F.Supp. 1030 (1969). www.Leagle.com.
- Randolph, A. Raymond. "Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion." Harvard Journal of Law and Public Policy. Vol. 29.