Choices from p 14 from Arizona, to replace Harlan, and Powell, who was from Virginia, to replace Black. They got through Senate confirma- tion quickly, but could not be sworn in until January 1972, too late to participate in Roe v. Wade arguments the month prior. The seven-justice panel ruled 5-2 to uphold the lower court decisions and knock down the Texas and Georgia laws. Justice Harry Blackmun wrote the draft opinion of Roe, throwing out the Texas law on grounds that it was constitutionally vague. That didn’t sit well with the court, according to memos in the files of Powell and other justices, which have been made public. Several justices began lobbying to rehear arguments with a full panel, including the two newly appointed justices, Powell and Rehnquist. Justice Douglas objected, fearing that some justices would waver and turn the decision around. Chief Justice Warren Burger wanted it re-argued. “Part of my problem arises from the mediocre to poor help from counsel,” Burger wrote in a memo to the other justices. And he wanted more amici, friends of the court, appointed to weigh in. “This is as sensitive and difficult an issue as any in this court in my time,” he wrote. Other justices thought the vagueness argument did not fit. The second argu- ments were to take place in October 1972 in front of a full panel of nine justices. Justice Powell hired Hammond as a clerk, and the two initially got off on the wrong foot. In January 1972, in a case called Furman v. Georgia, the high court abolished the death penalty on a 5-4 vote, saying that the way it was applied was too arbitrary. But that is where the agreement ended. All nine justices wrote separate opinions. The death penalty was not rein- stated until 1976, in another Georgia case that established the consideration of aggravating factors to more narrowly distinguish capital cases from other murders. Powell was among the dissenters in the 1972 case. Hammond was charged with drafting his opinion, but the two were on opposite sides of the issue. Hammond offered to resign, but Powell asked him to stay on. When the court went into summer recess, Hammond stayed in Washington to study abortion law and arguments, including Blackmun’s draft opinion in Roe, and prepare a memorandum for Powell to familiarize him with the facts. He became Powell’s go-to man. What About the Women? On December 9, 1972, two days before the second arguments in the Roe and Doe cases, Hammond penned a bench memo to prep Powell on what the various justices and the court records said. He noted “a fundamental right of a 16 woman to decide for herself whether she wished to continue her pregnancy,” which the lower courts upheld. He noted the ambiguity of statutes that opined on the U.S. Court of Appeals Handout U.S. Court of Appeals judge Andrew Hurwitz, a friend and associate of Hammond’s. Keystone/Getty Images Newly sworn-in justices William Rehnquist, an attorney from Arizona (left), and Lewis Powell in 1972. life and health of the pregnant woman and questioned how much the attending doctor should have to say in that decision. “It would not be difficult for this [court] to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter,” he wrote. But on the other hand, he added, “Because of the existence of a compelling state interest in the life of the baby, and because of an interest in the health of the mother, the state may regulate abortions to some extent.” Near the end of the memo, Hammond hinted at a solution to “weigh the state’s countervailing interest in protecting the life of the unborn.” “With that thought in mind of suggesting a convincing rationale for the balancing problem presented, I have read carefully Judge Newman’s recent Connecticut opinion and have attached a copy for your use. (This was drafted in part by Andy Hurwitz so you may gain some feeling as well for his writing ability.)” Hurwitz and Hammond did not yet know each other. They met a few years latter, ostensibly, when Hurwitz signed on to clerk for Justice Potter Stewart. But Hurwitz had recently clerked for Judge Jon Newman of the District Court for Connecticut, who sat on a District Court of Appeals panel that threw out the restric- tive Connecticut abortion statute. Newman wrote the opinion, and it presaged issues that would loom large in Roe. How much privacy was a person owed in matters of sex and family? Was a fetus a person “having a constitutionally protected right to life? And if not, could the state set “a purely statutory right at the expense of another person’s constitu- tional right?” Further, if a fetus was protected because it was a potential human, what about an unfertilized ovum? These were difficult questions, and no one had the right to impose his or her personal beliefs on others. The law needed to be more specific. One solution might be for the legislators to consider “viability,” Newman said. “While authorities may differ on the precise time, there is no doubt that at some point during pregnancy a fetus is capable, with probable medical attention, of surviving outside the uterus,” he wrote. Newman left it there without dictating anything to the state legislators. It planted a seed at the Supreme Court. Hurwitz has denied that he, in fact, authored the opinion, despite what Hammond wrote in his memo. In a foot- note to a law review article about the Newman opinion Hurwitz published in 2003, he wrote that Justice Stewart jokingly used to call him “the clerk who wrote the Newman opinion,” but dismissed it as exaggeration. And it haunted him later in his career, specifically during his 2012 U.S. Senate confirmation hearings, when Republicans threatened a filibuster to block his nomina- tion because of what they perceived as his views on abortion. He declined comment for this article through a spokesman, “passing on his kind regards, but to say that he doesn’t want to comment on Roe while the Supreme Court controversy is still growing.” Making the Sausage By the day’s standards, the Burger Court was anything but liberal. Four of the justices had been appointed by Nixon. But they still voted 7-2 to uphold the lower court rulings and knock down the Texas and Georgia abortion statutes. Justices Rehnquist and Byron White dissented. Then it was time to make the sausage. Bill Maledon was clerking for Justice William Brennan, who voted with the majority, but found the matter difficult, as he was a Catholic. “He was trying to take the religious issues out of it,” Maledon said. Maledon frequently played basketball at “The Highest Court in the Land” with Justice White, who had been a noted colle- giate athlete. White asked what the consti- tutional basis was for the majority decision, calling it “almost metaphysical.” “I think what everyone was struggling with was how do you get to a principled explanation?” Maledon said. In a memo to Rehnquist, November 27, 1972, Blackmun, who was writing the majority opinion, said that he still felt the statutes were vague. “I do not know, and I doubt any physi- cian can know, what is meant when the statute speaks of ‘the purpose of saving the life of the mother,’” he wrote. “My vague- ness, however, did not find favor.” Then he assured Rehnquist, who was opposed outright to allowing any abor- tions, that the states should have more say in regulating the procedure after the first trimester. But he was stuck there, wanting to draw the line at the first trimester. That same day, Hammond sent more notes to Justice Powell regarding Blackmun’s most recent drafts of the majority opinion. He zeroed in on how to balance a woman’s right to privacy and the state’s “legitimate interest in protecting potential life.” “If a line ultimately must be drawn, it seems that ‘viability’ provides a better point,” he wrote. “This is where Judge Newman would have drawn the line. It is consistent with common law history. Moreover, it comports with the rationale that the controversy over the finding of the time of beginning of ‘life’ is so great, and affects such intensely personal interests, that the [court] will not allow the state to make that judgment.” Two days later, Powell passed that thought on to Blackmun in a letter. And the next week Blackmun responded that he still preferred the end of the first trimester and allowing the states to regulate abortion from that point on, but that he >> p 18 JUNE 16TH– JUNE 22ND, 2022 PHOENIX NEW TIMES | MUSIC | CAFE | FILM | CULTURE | NIGHT+DAY | FEATURE | NEWS | OPINION | FEEDBACK | CONTENTS | phoenixnewtimes.com
