Choices from p 18 Roe v. Wade was published the same day. Nixon was furious at the leak, and espe- cially with the reporter, who had also broken news on Watergate. He contacted Burger. Hammond was opening Powell’s mail when he read Burger’s note about the leak — a scandal perhaps, but of limited scope. Hammond called Powell to confess, and once again offered to resign. Powell again refused and sent him to talk directly with Burger. The chief justice, according to Robenalt, scolded Hammond, but thanked him for his honesty and sent him back to work. Shortly thereafter, Hammond moved on to the Justice Deparment to take part in prosecuting the other big legal story of the decade: the Watergate burglary and Nixon’s participation in it. Pushback: Alito Strikes Back In 1992, the U.S. Supreme Court ruled in a case from Pennsylvania called Planned Parenthood v. Casey, which some politicians and attorneys hoped would overturn Roe. It set parameters on abortion law, including informed consent, waiting periods, parental consent in the case of minors, and a provision that the father of the unborn child grant consent as well. The law cleared the Third U.S. Circuit Court of Appeals, except for the husband- consent clause, which was deemed an undue burden on the woman and possible cause for domestic abuse. One judge on the three-judge appellate panel dissented on that issue — Alito, the future Supreme Court justice. The U.S. Supreme Court upheld that lower court decision, although it balked at suggestions to overturn Roe. Instead, in an opinion co-authored by Justice Sandra Day O’Connor, it gutted the trimester approach but kept the concept of viability. The majority also upheld the theory of privacy under the 14th Amendment — O’Connor, of Arizona, was steadfast in keeping government out of the bedroom — and cited stare decisis, the principle of upholding court precedence. Another Arizonan on the court, Rehnquist, stood on the side for over- turning Roe. Abortions in the U.S. peaked at 1.6 million in 1990, according to statistics from the Centers for Disease Control and Prevention. The last available tally showed about 630,000 abortions in 2019. Washington D.C. and 16 states with the largest cities — mostly on the East Coast, along with California and Illinois — have passed legislation to keep abortion avail- able. They will become medical destina- tions in coming years if Roe is knocked down, as appears likely. And that is because of the same kind of selective math that allows a minority in the U.S. Senate to retain control, based on a majority of states instead of a majority of voters. “[Twenty-six] states have expressly 20 asked this court to overturn Roe and Casey Alex Wong/Getty Images Protesters at the Supreme Court protest the leaked Alito draft of a decision overturning Roe v. Wade. doesn’t apply, because unlike issues like contraception, sex among consenting adults, and same-sex marriage, abortion “destroys potential life.” “Roe was on a collision course with the Constitution from the day it was decided,” Alito wrote in the draft opinion, “and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people.” Roe and Casey were examples of “raw judicial power,” he wrote, and the only way to rectify that is through more raw judicial power. U.S. Supreme Court Justice Samuel Alito. Chip Somodevilla/Getty Images and allow the states to regulate or prohibit pre-viability abortions,” Alito wrote in the leaked draft opinion for Dobbs, the pending abortion case before the high court. Except for Texas, they are mostly states with smaller populations in the South and rural Midwest, plus Utah. And of course, Arizona. It will be Alito’s revenge on the Planned Parenthood v. Casey opinion. He’s right. Abortion is not mentioned in the Constitution and it has no legal prece- dence in American history. And as for court precedence, Alito implies, mistakes are mistakes, and should be corrected, and never mind that he and the other four judges in his majority cited stare decisis to dodge questions about Roe during their Senate confirmation hearings. There is no concern for the women in Alito’s draft opinion, only for the fetuses they are carrying. As for due process, it History Repeats In January 1973, days before Roe v. Wade was made public, Justice Blackmun prepared a statement to the public to explain the logic behind the opinion. He anticipated the same questions that are being argued today, for and against, in the pending opinion that will likely invali- date Roe, noting that: doctors and reli- gious groups could not agree on whether life began at conception, at viability or at birth; laws regulating abortion were already more than 100 years old; and women had a right to privacy over matters concerning her own bodies. “We have concluded again, as the court has done before, that there is a right of personal privacy under the Constitution,” Blackmun wrote. “It is not spelled out in so many words, but the court has recog- nized this right before in many cases and in varying contexts. We feel that it is founded in the 14th Amendment’s concept of personal liberty and restric- tions upon state action.” He reiterated the need to balance that right with the state’s aim to protect health of both mother and fetus. Then he added a disclaimer. “In closing, I emphasize what the court does not do by these decisions,” he wrote. “I fear what the headlines may be, but it should be stressed that the court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physi- cian. Thereafter, the decisions permit the state, if it chooses, to impose reasonable regula- tions for the protection of maternal and fetal health. And, after viability, they give the state full right to proscribe all abortions except those that may be necessary, in appro- priate medical judgment, for the preservation of the life or health of the mother.” The same issues stand today. What’s different: compromise is no longer feasible. An Era Passes It’s impossible to know if Larry Hammond would want to plow that field again. He died in March 2020, at the age of 74, just as the coronavirus pandemic began to shut down the world. His memorial service would have been mobbed if it hadn’t been canceled at the last minute because of the pandemic. He had influenced so many people over the course of his career. Most of us knew nothing about his influence in Roe v. Wade, or for that matter, about his work on Watergate. As word spread that he was in the hospital and dying, so many friends wanted to visit that his assistant had to take appointments. Larry kept them, and he imparted his good advice as selflessly as ever. He was, as always, mostly concerned about fairness in the judicial system, and fairness of other sorts. Hammond needed a lung transplant, but there were questions as to whether he was healthy enough to get one. Friends recalled that he questioned whether he even deserved a transplant, thinking it should go to a younger person who had better chances of surviving. While awaiting a decision, Hammond died. Dale Baich reflected on the loss. “With Larry’s passing, there seems to be a void in the criminal defense community. His leadership is missed. There doesn’t seem to be another person who reaches across different constituencies to bring people together.” Michael Kiefer, a longtime resident of Phoenix, was a senior reporter at The Arizona Republic and a staff writer at Phoenix New Times, during which he has covered a U.S. Supreme Court hearing in person. JUNE 16TH– JUNE 22ND, 2022 PHOENIX NEW TIMES | MUSIC | CAFE | FILM | CULTURE | NIGHT+DAY | FEATURE | NEWS | OPINION | FEEDBACK | CONTENTS | phoenixnewtimes.com
