THe leaked to Politico Monday a draft opinion from a majority U.S. Supreme Court Justices. This would invalidate Roe v. Wade has been called “unprecedented” in the modern history of the Court—but it’s not the first time a Supreme Court decision has been made public before its official release. This week’s leak comes 49 years after TIME first published the news of the original Roe V. Wade decision, which ruled that a woman’s constitutional right to privacy included decisions about whether to terminate a pregnancy.
TIME reached David C. Beckwith who was the source of the 1973 story. He is currently retired and residing in Austin. The scoop was discovered by Beckwith after a year of working for TIME. He covered legal affairs and Department of Justice. He says he talked to about 15 people for the story, including a clerk for Justice Lewis F. Powell Jr. named Larry Hammond, and that he had no problem getting people to talk to him about the case, though he did find people were “nervous” at first.
“I talked to a lot of people—some on the court, some clerks, some friends of people that were either clerks or court members,” says Beckwith, now 79.
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The resulting article, headlined “Abortion on Demand,” ran in the Jan. 29, 1973, issue, in the section “The Sexes.”
“Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land,” the article reported. “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.”
TIME later explained the significance behind the decision.
The historic ruling, upholding a challenge to Georgia’s restrictive abortion statute, will permit states to impose only minimal curbs on the right to abortion at will. Some of these might be consent from a physician or licensing for abortion facilities. A ban on the late termination of pregnancy could also be included. Beyond that, a woman’s freedom to end her pregnancy will not be significantly abridged. No decision in the court’s history, not even those outlawing public school segregation and capital punishment, has evoked the intensity of emotion that will surely follow this ruling. This pronouncement will end 13 months worth of legal wrangling between the Justices and spark new controversy throughout the country.
The magazine’s story was supposed to come out after the decision came down, but the decision was delayed, so the issue ended up hitting newsstands a few hours before the ruling was announced on Jan. 22, 1973.
Beckwith remembers getting some pushback to the article shortly after it came out; Chief Justice Warren E. Burger showed up at TIME’s Washington Bureau. Beckwith drove the editors in a limousine from New York to meet Burger.
“Burger showed up at the TIME offices a month or two after the decision was announced [and] he had a loose-leaf binder, three inches thick, detailing all the reporting I’d done,” Beckwith says. “He feared that the integrity of the court was being jeopardized, and he wanted me to be fired or to be ordered not to spy on the court. “He thought…” [the story]was the equivalent to espionage. He was guilty of this type of espionage, which was very damaging for the country and the court. [he] couldn’t have a situation where this sort of thing happened again—it could affect the stock market, it could affect all sorts of things. And he tried to get some sort of promise, and he couldn’t believe that the TIME editors didn’t see it his way.”
The integrity of the institution is being questioned by the court again, nearly fifty years later. After confirming the authenticity of Justice Samuel Alito’s latest leak draft, the court launched an investigation to determine the identity and motives of the leaker. The opinion is not the final draft, and the content could still change, but Beckwith, for one, agrees with what he’s seen. Some legal scholars have interpreted the Alito draft to be a dangerous departure from precedent.
“I’m kind of old school…I found, from my reading of the Alito decision, that it’s a tour de force,” Beckwith says he believes. “It’s really hard to argue with much of what he says, from a constitutional law standpoint. We all have our political opinions that divide us, these days especially, but if you believe that the Constitution should be the lodestar for our jurisprudence, Alito is hitting all the right notes, and I just don’t see much that can be argued with it.”
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Beckwith is also able to see why the leak in 2022 makes more noise than the work he did in 1973.
“The impact of my story was much less, much less, because while it was seen as a technical leak from the court, it was immediately overtaken by the actual decision itself within a day,” says Beckwith.
Beckwith explains that the decision was made Jan. 22, 1973 two days after Inauguration day. There were reasons for this, Beckwith states. “According to the rumor I got,” he says, “Burger didn’t want to face [President Richard] Nixon on the inauguration stand with that decision having just come out.”
Read TIME’s 1973 story on theRoe v. Wade TIME Vault Decision
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