The Washington PostDemocracy Dies in Darkness

Original Roe v. Wade ruling was leaked to the press — and we know who did it

Members of the Supreme Court on April 20, 1972. Front row, from left: Justices Potter Stewart and William O. Douglas; Chief Justice Warren E. Burger; Justices William J. Brennan Jr. and Byron R. White. Back row, from left: Justices Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackmun and William H. Rehnquist. (John Rous/AP)
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The Supreme Court announced Thursday that it could not determine who leaked a draft of its landmark opinion last year overturning Roe v. Wade.

In May, Politico published a draft of Justice Samuel A. Alito’s opinion in Dobbs v. Jackson Women’s Health Organization. The draft closely resembled the decision the court issued weeks later, prompting an internal investigation.

But this wasn’t the first leak of a ruling involving Roe. The original Roe v. Wade decision was leaked in 1973. And we know exactly who leaked it.

Larry Hammond, a Supreme Court clerk at the time, leaked the ruling to a Time magazine reporter in January 1973. The issue of Time, with an article titled “The Sexes: Abortion on Demand,” appeared on newsstands hours before the decision was announced by Justice Harry Blackmun.

Hammond, who died in 2020, told me about the leak when I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.”

Hammond clerked for Justice Lewis Powell and played an important role in convincing Powell that the “viability” standard (when a fetus could live outside the womb) was the most supportable line to draw in determining when a state may not regulate a woman’s right to an abortion. Powell privately persuaded Justice Harry A. Blackmun and ultimately a 7-to-2 majority to adopt the viability standard, and that has been at the heart of Roe and later Casey v. Planned Parenthood, which were both reversed last year.

Hammond confided in an acquaintance he knew from the University of Texas School of Law that the Roe ruling was forthcoming. The acquaintance, a Time staff reporter named David Beckwith, was given the information “on background” and was supposed to write about it only once the opinion came down from the court. A slight delay in the ruling, however, resulted in an article that appeared in the issue of the magazine that hit newsstands a few hours before the opinion was read on Jan. 22, 1973.

The unknown Supreme Court clerk who single-handedly created the Roe v. Wade viability standard

Chief Justice Warren Burger was livid. The Supreme Court has always jealously guarded its opinions, and secrecy is critical to maintaining an evenhanded approach to dispensing justice. There are obvious and profound consequences if litigants and the public are tipped off to the result in a case before it has been formally announced and adopted.

Burger sent a frantic “eyes only” letter to all the justices demanding that the leaker be identified and punished. Burger even threatened to subject law clerks to lie-detector tests if no one was forthcoming.

Hammond opened Burger’s letter, as was his custom when Powell was out of town. (The justice was visiting a friend in Florida.) He immediately sought to find Powell and tell him what happened and to offer his resignation. Powell would not hear of it and called Burger to tell him that Hammond had been double-crossed. A few minutes later, Hammond received a call from Burger’s secretary asking him to come to the chief’s chambers.

Burger had reason to be especially angry about the leak. He had reluctantly supported the decision in Roe, but he went to pains to write that the decision was not going to result in “abortion on demand” — which had been the headline of Beckwith’s story.

Jan. 22, 1973: The day that changed America

Despite this, Burger showed mercy to Hammond and gracefully accepted his apology, though he continued to fulminate against Beckwith and the Time story. Hammond survived as Powell’s clerk and even served an additional term for the justice before leaving the court to join the Watergate Special Prosecution Force.

The story of Hammond’s close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time.

A version of this article originally ran on May 2, 2022.