Life’s Choices HOW A PHOENIX ATTORNEY MADE ABORTION LAW ‘VIABLE.’ By Michael Kiefer I t was 1972, an election year just like this one, and abortion was a major issue. Most states did not allow abor- tion. Many of the state laws limiting or prohibiting it were more than 100 years old, and they were being challenged in state after state and getting overturned by federal judges. The states trying to hold onto them petitioned the U.S. Supreme Court. Roe v. Wade, the landmark opinion that made abortion available in all 50 states, was argued twice before the high court that year. The question was whether to uphold or knock down harsh abortion restrictions in Texas and Georgia. Sound familiar? The debate has not changed in more than 50 years. “The abortion cases are symptom- atic,” Justice William O. Douglas wrote in an unpublished 1972 dissent after the first Roe arguments. “This is an election year. Both political parties have made abortion an issue. What the political parties say or do is none of our business. We sit here not to make the path of any candidate easier or more difficult. We decide questions only on their constitu- tional merits.” In 1972, the hard part was deter- mining what rights to grant an unborn fetus and what rights to afford the woman carrying the fetus. The Constitution didn’t specify either. Rather than keep batting down vague laws, the justices decided to set guidelines. But where? The solution came from a young lawyer clerking for Justice Lewis Powell. He convinced Powell to educate the other justices on the concept of “viability,” the point when a fetus was thought capable of surviving outside the uterus. That would be the point when concern shifted from the rights of the mother to the rights of the “potential life.” Under Roe’s rules, having an abortion would be a deci- sion made by a woman and her doctor for the first trimester, or 12 weeks, of pregnancy. From then until viability, then thought to be 27 weeks, until the end of the second trimester, the state legislatures could set certain restrictions, especially to protect the health of the woman seeking an abortion. And after that, abortions could only be performed in dire circumstances to save the life of the mother. According to the leaked draft opinion, authored by Justice Samuel Alito, much of the nation will return to those now 150-years-or-older laws knocked down by Roe. It will be as if the court had pressed a legal reset button. There is no constitutional right to abor- tion, it says, and the decisions about regulating the procedure should return to the state legislatures. That a draft of the opinion was leaked has been called a scandal, some- thing that never happened before. But it did happen before, if not on the same scale. Roe v. Wade also was leaked to the media, and that leak was caused by the same young clerk who had pushed the concept of viability. He would go on to become a dean of lawyers in Phoenix. His name was Larry Hammond. Dean of the Defense Attorneys Hammond was a tall man with a shock of black hair and wire-rimmed glasses. He stood with a bit of a stoop, as if he wouldn’t want to look down on anyone while making eye contact. His voice was high-pitched, almost creaky, displaying his Texas country roots. He spoke slowly and deliberately, Ellen Weinstein The Roe v. Wade opinion was released in January 1973. It was modified by the U.S. Supreme Court in 1992 by an opinion called Planned Parenthood v. Casey, but the concept of viability held, and abortion was still legal across the country. Now we are in another election year, and conservative states, starting again with Texas, have rammed through new abortion laws that resemble the old laws, knowing they would lead back to the U.S. Supreme Court. The court had refused to grant an injunction against a Texas law that violated Roe. And now, another case, Dobbs v. Jackson Women’s Health Organization, comes out of Mississippi. The court heard arguments in December. The handwriting is on the wall — and all over the internet, since a draft of the pending opinion was leaked last month. pausing often, and you wouldn’t think much of it until you knew that he stut- tered as a young man and was forever holding it back. And he spoke softly, both metaphorically and literally, a humble man who suffered from a pulmonary disease that eventually killed him in March 2020. After his stint at the U.S. Supreme Court, he was recruited by the Watergate Special Prosecution team and was tasked with listening to President Richard Nixon’s incriminating secret tapes. Later, he returned to Washington to work in President Jimmy Carter’s Department of Justice on the team attempting to free American hostages in Iran. When Hammond first left Washington in 1975, he had accepted a job in Los Angeles, but a friend from his clerking days, William Maledon, asked him to stop in Phoenix on his way to visit with him and another former clerk, Andrew Hurwitz. “He never made it to L.A.,” Maledon said in a recent interview. Instead, Hammond settled into legal practice >> p 14 13 phoenixnewtimes.com | CONTENTS | FEEDBACK | OPINION | NEWS | FEATURE | NIGHT+DAY | CULTURE | FILM | CAFE | MUSIC | PHOENIX NEW TIMES JUNE 16TH– JUNE 22ND, 2022
