ConfirmThem

By Irishlaw Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

Responding to Paul: I've done a bit of research on Norma McCorvey's motion over the last two years. Here was my evaluation of the motion, to give some background: In 2003, with the help of the Justice Foundation (a pro-life legal group), McCorvey filed a Rule 60 motion to have the decision overturned -- Rule 60(b)(5) providing for parties to an action to have a decision overturned after the fact, if "it is no longer equitable that the decision have prospective application." In this case, McCorvey was trying to prove that that the judgment in Roe is no longer just or equitable by making three arguments:

(1) Affidavits from 1300 post-abortive women show that abortion is devastating and harmful to women;
(2) Scientific evidence not available in 1973 now shows conclusively that life begins at conception; and
(3) Texas (the state in which the case originally arose) now has a “Baby Drop Off” law under which the state takes responsibility for all unwanted children, substantially reducing the burdens of childcare on pregnant women.

If this evidence proved that the judgment in Roe was unjust, the court could overturn it. The district court dismissed the motion after two days, saying the motion hadn't been filed in a "reasonable" time -- the reason I was originally afraid the whole case would sink. But it can plausibly be argued that the timing is reasonable in light of when the affidavits were gathered, the scientific evidence was discovered, and the new Texas law was passed. The Supreme Court has overturned decisions on 60(b)(5) motions before, such as in Agostini v. Felton -- a 12-year-old precedent -- but 12 years is different than 30, especially since this particular Court has several times ruled on abortion cases in part on the grounds that society now relies on the availability of abortion (that is, they have specifically affirmed this precedent just because it is precedent). Agostini just involved separation of church and state issues in education.

As it turned out, the 5th Circuit agreed that it is at least plausible that 30 years isn't too long, but it didn't rule on the "time" part of the rule but rather (similar to what Paul thought) on mootness grounds. Judge Jones wrote a concurring opinion that, while agreeing with the mootness conclusion, strongly criticized the Supreme Court's jurisprudence on the subject. Summarizing much of McCorvey's evidence about the harm abortion does to women and the way science and society have changed, Judge Jones wrote:

In sum, if courts were to delve into the facts underlying Roe’s balancing scheme with present-day knowledge, they might conclude that the woman’s “choice” is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.

This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court’s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court . . . .

The perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter.

But Judge Jones couldn't think of any conceivable way in which the Court might ever be able to revisit the underlying facts of the issue. I agree that it's not likely the Court will hear the issue in this guise. So what's the answer to Paul's question? I think the only way to force the issue might be for a state (like South Dakota has proposed doing) to outlaw abortion and then wait for Planned Parenthood to sue. If they listed evidence like McCorvey's as part of the "findings" section of such a bill, the Supreme Court might consider the evidence. Of course, the fear would be that the Court would issue another resounding endorsement of Roe, or of what's been called "the worst constitutional decision of all time," in Casey. Or maybe we'd get another call for defining our own concepts of existence. Still, even if it may not prudent to force the issue now, I think a state passing a law is the likeliest way to cause the Court to act.