Judge Randolph, Judge Friendly, and Abortion

A few weeks ago, in Washington, D.C., Judge Ray Randolph delivered the Federalist Society's annual Barbara Olson lecture.  (Thanks to Orin Kerr for the link).  He opened with this:

It is well-known that Henry J. Friendly was one of the greatest judges in our nation’s 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.

The lecture is not long, though it is too long to excerpt helpfully here.  This passage, though -- taken from Judge Friendly's draft -- caught my eye:

"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 . . . 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.