• History
  • abortion

Inside the Original Roe v. Wade Supreme Court Leak, 49 Years Before the Alito Bombshell

5 minute read
Updated: | Originally published:

The leak to Politico on Monday of a draft of an opinion by a majority of U.S. Supreme Court Justices that would overturn 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 called up the reporter behind the 1973 story, David C. Beckwith, who is now retired and living in Austin. He landed the scoop about a year into working at TIME, covering legal affairs and the 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.

Read more: Roe v. Wade Lawyer ‘Amazed’ Americans Still Fighting Over Abortion

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.”

As TIME explained the significance of the decision back then:

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. These might include consent of a physician, licensing of abortion facilities and a ban on late termination of pregnancy. 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. The pronouncement, ending 13 months of wrangling among the Justices, is certain to be met with passionate resistance by abortion opponents and to stir new controversy across the nation.

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. Editors flew down from the New York headquarters in a private plane, and Beckwith escorted them in a limo to a dinner meeting with 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 of espionage. His position was this sort of espionage on the court was damaging to the court and to the country and that [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.”

Nearly five decades later, the court is again concerned about the integrity of the institution: having confirmed the authenticity of the latest leaked draft, written by Justice Samuel Alito, the court has launched an investigation into the identity 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, on the other hand, have read the Alito draft as a dangerous break with 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.”

After TIME, Beckwith worked in Republican politics for Dan Quayle, Kay Bailey Hutchison, and John Cornyn.

Read more: A Case That Could Overturn Roe v. Wade Goes Before the Supreme Court

Beckwith also understands why the 2022 leak is making a much greater splash than his own work made 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.

The decision came out on Jan. 22, 1973, two days after Inauguration Day, and there was a reason for that, Beckwith says. “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 the Roe v. Wade decision in the TIME Vault

More Must-Reads from TIME

Write to Olivia B. Waxman at olivia.waxman@time.com