An Unknown Supreme Court Clerk Created the "Viability" Standard in Roe v. Wade

On Wednesday, the Supreme Court will reconsider the fundamental principle that has underpinned abortion law since the 1973 Roe v. Wade ruling: the right to end a pregnancy before the viability of the fetus.

Oral arguments will take place in Dobbs v. Jackson Women’s Health Organization, a case concerning Mississippi’s abortion ban after 15 weeks of pregnancy. The law was designed as a direct challenge to Roe, and the Supreme Court has accepted a question the state wants answered in its ruling: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

To understand the vulnerability of Roe v. Wade, one needs to dig into the backstory of how the case was decided almost 50 years ago. And when it comes to the viability standard, all roads lead to Larry Hammond, Justice Lewis Powell’s law clerk at the time.

Hammond’s bench memo to Powell in October 1972 is arguably the most important ever produced by a Supreme Court law clerk.

Clerks typically draft dry bench memos to justices outlining the facts and arguments to consider. But Hammond’s memo was the very source of the concept of viability in Roe.

The notion of using viability — the time when a fetus can survive outside the womb — had not even been argued by the litigants. It was Hammond’s suggestion.

Hammond died in March 2020 at 74 of complications from a lung disease. In 2013, I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.” It was the only extensive interview he ever gave on his behind-the-scenes work in the Roe case.

“Before he died, Justice Powell released me to speak about our interactions so long as I didn’t talk about other justices,” he told me. Our conversation clarified the decision-making process that underpins the legal precedent now coming under question.

Hammond was born in El Paso to Episcopalian parents with strong religious convictions. After law school at the University of Texas, he won a clerkship on the U. S. Court of Appeals in Washington and subsequently was hired by Justice Hugo Black in the summer of 1971.

Black was 85, and he suffered a series of strokes that resulted in his death in September 1971. Hammond was a clerk without a justice; he was reduced to shepherding schoolchildren on Supreme Court tours, playing basketball at the court’s facility and whiling away afternoons in gab sessions with Justice Thurgood Marshall.

By tradition, he should have been done at the end of the court’s term, but fate intervened. President Richard Nixon nominated Virginia attorney Lewis Powell to replace Black, and Powell decided to retain Hammond. Their partnership was immediate. Powell would write to Hammond when he completed his clerkship: “I think you are one of the ablest lawyers with whom I have ever worked. Your capacity of penetrating legal analysis is exceptional.”