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Judge In Norma McCorvey Case Blasts Roe v. Wade Abortion Decision

Most people have heard of Roe v. Wade - it is a court case that has become almost synonymous with abortion. The "Jane Roe" of the case sued for the "right" of elective abortion and won in 1973 (after giving birth). Subsequently, courts have continued to protect the practice of abortion. However, Roe (whose name is Norma McCorvey) has had a significant change of heart and is working to get the prior case overturned.

Sometime in the last decade or so, Norma McCorvey realized that she had been an unfortunate pawn in the battle over abortion rights and switched sides in the debate, recently describing herself "one hundred percent pro-life." Convinced that the decision that bore her pseudonym was a travesty of law, she filed a motion last year to re-open the original decision, declaring at the time: "I deeply regret the damage my original case caused women. I want the Supreme Court to examine the evidence and have a spirit of justice for women and children." [National Review]

Recently she lost her case. However, the opinion of one of the three judges who ruled on the case is very enlightening.

Lifenews (9/23): Though a three-judge panel of a federal appeals court turned back a request by Norma McCorvey to reopen the Roe v. Wade case that legalized abortion, one of the panel's judges blasted the nation's high court for its landmark 1973 decision. Circuit Judge Edith H. Jones wrote the opinion for the court denying McCorvey's request. However, she also wrote a concurring opinion calling Roe an "exercise of raw judicial power," and citing evidence McCorvey presented showing abortions hurt women. Jones, a Reagan nominee, wrote that the "[Supreme] Court's rulings have rendered basic abortion policy beyond the power of our legislative bodies." "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," Jones added. McCorvey's motion included over 5000 pages of evidence with affidavits from over 1000 woman who have been harmed by abortion. "It takes no expert prognosticator to know that research on women's mental and physical health following abortion will yield an eventual medical consensus," Jones said. [more]

The Austin Chronicle has more:

... in a concurring opinion Judge Edith Jones noted the "irony" of the situation – it was an exception to the "doctrine of mootness" that brought forward McCorvey's original Roe case, she wrote.

McCorvey's case was tossed this time around because she had no "live 'legal' controversy" to offer the court, yet McCorvey does have "serious and substantial" evidence that could have "generated an important debate over factual premises that underlay Roe," Jones wrote. McCorvey offered the court "about a thousand" affidavits from women who've had abortions and claim to suffer "long-term emotional damage and impaired relationships from their decision," she added, and also presented evidence suggesting that women are "herded" through the procedure with "little or no medical or emotional counseling."

"In sum, if courts were to delve into the facts underlying Roe ... they might conclude that the woman's 'choice' is far more risky and less beneficial," Jones wrote. However, without an exception to mootness, Jones wrote, the court is barred from considering McCorvey's present evidence. "One may fervently hope that the [Supreme] Court will someday acknowledge such developments and re-evaluate Roe ... accordingly," she wrote. "That the Court's constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer."

What's more, Jones cited the evidence presented by scientists and doctors that prove the pre-born child develops earlier than anticipated in the early 70s and is sensitive to pain.

But perhaps most importantly, Judge Jones cited evidence showing that neonatal and medical science "now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed." The evidence reviewed by Judge Jones on the issue of fetal pain was similar to that produced by the federal government in recent trials on the constitutionality of partial-birth abortion. There, an Oxford-educated specialist in neonatal pain, Dr. Kanwaljeeet Anand, testified that unborn children are likely to feel pain in the womb by 20 weeks of gestation — perhaps even earlier — and that abortion could therefore cause excruciating pain for an unborn child. Reviewing similar evidence before her, Judge Jones concluded that "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." [National Review]

Norma McCorvey's new lawsuit never had a chance. But perhaps she's done her new cause a great service in helping to expose the truth. Maybe, just maybe, Judge Jones's plaintive cry is one step in a long battle to undo the mess that McCorvey and her friends once made back in the day she was otherwise known as Jane Roe.

Marcland has more useful comments.

Posted by tim at September 23, 2004 2:12 AM

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