The leak of an internal US Supreme Court document, which indicates the court will change a nearly 50-year-old understanding of the country’s abortion rights, has evoked the very decision that is about to be reversed.
This is because in 1973 the position of the highest instance of the American Justice in the case Roe v. Wade ended up being released first by the press, by a matter of hours. The limited speed at which information could circulate in those days and at which it crosses borders in a few minutes today is a crucial difference in understanding the weight of the events of this Monday (2) – which quickly had an impact on the political movement of Democrats, such as President Joe Biden, and Republicans.
That year, in January, a combination of factors caused the weekly edition of Time magazine to hit newsstands with the story “The Sexes: Abortion on Demand” hours before the final decision announced by Judge Harry Blackmun.
The leak was based on information passed by Larry Hammond, then a clerk of the Supreme Court, to David Beckwith, a reporter for the publication with whom he had been a colleague in law school. The details of the case were told to writer James Robenalt, who returned to the topic in a column published this Monday in The Washington Post.
Hammond was serving Judge Lewis Powell and would have played an important role in convincing the magistrate of the line of reasoning that would become central in Roe v. Wade: the concept of viability, which refers to the ability of the fetus to survive outside the mother’s womb.
Once aware that the decision in favor of the right to abortion was approaching, the clerk made a kind of agreement with his fellow journalist, whereby he assumed the commitment to only publish the text when the final opinion of the court was made official. Then, an unforeseen delay in court proceedings, combined with the anticipation of production common in the print media, resulted in a “scoop”, in journalistic jargon.
At the time, Judge Warren Burger, who presided over the collegiate body, was furious. The tradition of secrecy regarding the court’s decisions is one of the bases of the judgment, in theory, impartial regarding any topic.
Burger ordered the opening of an investigation, similar to what current President John Roberts did on Tuesday (3), and circulated a memorandum among Supreme Court officials so that the person responsible for the leak could be quickly identified and punished. He even threatened to interrogate all the clerks with the help of lie detectors until he discovered the breach in the courtroom.
Upon hearing of Burger’s reaction, Hammond immediately addressed his direct boss, admitting his role in the case and offering to resign. Judge Powell, in turn, refused the resignation request and interceded for the clerk to defuse the situation – the president gave in, kept Hammond in his position and started to direct his criticisms to the press.
Robenalt says in his column that Burger was particularly bothered by the leak for two reasons. First, because he himself had reluctantly voted for the right to abortion. Second, because the title of the Time report, which spoke of “abortion on demand”, could sound as if the termination of a pregnancy were something banal.
Abortion Legislation in the US for the Last 200 Years
- 1829: New York criminalizes abortion with greater penalty when the pregnancy was terminated after the mother felt the baby move
- 1847: Creation of the American Medical Association (AMA), which launches campaign to criminalize abortion in several states
- 1873: Law prohibits distribution of material on abortion and contraceptive methods
- 1880: All states had laws that restricted the practice of abortion; there were exceptions for states where the interruption was to save the mother’s life and under medical advice
- 1930: Clandestine abortions were responsible for the deaths of 2,700 women, nearly a fifth of all maternal deaths.
- 1955: Articulation for reform of laws that prohibited abortion gains strength
- 1966: Nine doctors who performed abortions are prosecuted in California and supported by academics and activists across the country. State reforms law and allows hospitals to create committees to evaluate abortion requests
- 1967: Alaska, Hawaii, New York and Washington begin reform to allow abortion in cases of risk of death, damage to physical or mental health, fetal anomalies, rape and incest
- 1970: New York legalizes abortion until the 24th week of pregnancy and starts to receive women from other states who sought the procedure
- 1973: Historic Supreme Court ruling in Roe v. Wade gives women the right to choose abortion and becomes the basis for similar positions nationally.
- 1976: Amendment considered discriminatory restricts federal funding for abortions to Medicaid users (health plan for low-income Americans)
- 1992: Planned Parenthood v. Casey reaffirms 1973 decision by removing some obstacles to abortion rights, but leaves room for legal challenges
- 2018: Mississippi enacts law banning abortion even in case of rape after the 15th week. Case went to the Supreme Court and may change national jurisprudence on the subject
- 2021: Texas passes law banning abortion after six weeks, when many women who still don’t know they’re pregnant
- Apr.2022: Oklahoma legislature passes bill criminalizing abortion except in medical emergencies
- May 2022: Leaked draft Supreme Court ruling hints at possible reversal of broad abortion rights
