Choices from p 16 “could go along with viability if it could command a court.” By December 11, Blackmun was becoming more convinced. In a memo- randum to all the justices, he wrote, “Viability has its own strong points. It has logical and biological justifications. There is a practical aspect, too, for I am sure that there are many pregnant women, particu- larly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.” Hammond jumped on that paragraph when he conveyed his reaction to Powell. What about the women? “For many poor, or frightened, or uneducated, or unsophisticated girls the decision to seek help may not occur during the first 12 weeks. The girl might be simply hoping against hope that she is not pregnant but is just missing periods. Or she might know perfectly well that she is pregnant but be unwilling to make the decision — unwilling to tell her parents or her boyfriend.” Within days, Powell reiterated his concern about the first trimester. Stewart weighed in with the same. Douglas sent a terse note saying he favored the first trimester. Brennan thought viability focused too much on the fetus instead of the woman. Marshall advocated for viability. Blackmun decided. In a memo to the conference, he wrote, “I have in mind associating the end of the first trimester with an emphasis on health” (because it was the safest time for a woman to undergo an abortion), “and associating viability with an emphasis on the State’s interest in potential life. The period between the two points would be treated with flexibility.” The state, in other words, could exert more regulation during that period, and afterward, abortions could only take place in extreme emergencies. The sausage was made. Powell was satisfied, too, and decided to join with Blackmun on his final draft. He wrote a memo to Hammond that perhaps summed up the lot of the Supreme Court clerk. “Although [Blackmun] gives credit in his memo of December 1 to others, I suggest that you are entitled — particu- larly in view of your education of me on the viability issues — to credit that is nonetheless substantial because it will never be recognized. I think I was perhaps the first to press for viability change,” Powell wrote. The Leak Roe v. Wade was supposed to be made public on January 17, 1973. But Chief Justice Burger decided to delay the release in deference to Nixon, who despite the ongoing trials of the Watergate burglars, was to be inaugurated Keystone/Hulton Archive/Getty Images into his second term on January 20 after a landslide reelection win. In the previous week, Hammond had met with a law school acquaintance who was working for Time magazine — and he let slip “on background” what the majority opinion entailed, according to Robenalt’s book. “It was typical of him,” Robenalt told me. “He was being friendly with a friend.” The reporter, David Beckwith, prepared a story to be published January 22, 1973 (and dated January 29), which would theo- retically come out days after the opinion’s publication. Sandra Day O’Connor was another conservative Supreme Court justice from Arizona. The article ran without a byline, and it did not include leaked documents or any language in the opinion. “Last week Time learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land,” it said after a lengthy lede. “Such laws, a majority of the justices believe, represent an unconstitutional invasion of privacy that interferes with a woman’s right to control her own body,” >> p 20 18 JUNE 16TH– JUNE 22ND, 2022 PHOENIX NEW TIMES | MUSIC | CAFE | FILM | CULTURE | NIGHT+DAY | FEATURE | NEWS | OPINION | FEEDBACK | CONTENTS | phoenixnewtimes.com
