Unraveling Roe by Grasping at Threads
Jacob Mattis, J.D., LL.M. Candidate, University of Houston Law Center
jmattis@central.uh.edu
October 22, 2004
Last year, Norma McCorvey, the woman who brought the original complaint in
Roe v. Wade1 under the pseudonym Jane Roe, sought to reopen her case in light of new
evidence.2 On September 14, 2004, the United States Court of Appeals for the Fifth
Circuit dismissed McCorvey’s attempt as moot. However, Circuit Judge Edith Jones’
concurring opinion recognizes that some of McCorvey’s scientific and social arguments
may have merit.3
Since the Supreme Court’s 1973 decision in Roe, McCorvey has become an
outspoken advocate against abortion.4 In her 2003 lawsuit, McCorvey filed a motion
under Federal Rule of Civil Procedure Rule 60(b), which permits a court to relieve a
party from a final judgment in some situations involving newly discovered evidence.5
The United States District Court for the Northern District of Texas denied McCorvey’s
motion after concluding that the motion was not filed within a reasonable time after final
judgment in Roe v. Wade was entered. McCorvey appealed the decision to the Fifth
Circuit, arguing that the district court abused its discretion in rejecting her motion as
untimely. The Fifth Circuit found, however, that it had an independent obligation to
examine whether McCorvey presented a justiciable case or controversy pursuant to
Article III of the Constitution. After examining this question, the Fifth Circuit found that
1
410 U.S. 113 (1973).
See McCorvey v. Hill, 2004 WL 2035319 (5th Cir. 2004), available at
http://news.findlaw.com/cnn/docs/abortion/mccrvhill91404opn.pdf.
3
Id. (Jones, Cir. J., concurring).
4
Thomas Korosec, Bid to Reopen Roe case Fails, HOUSTON CHRON., September 15, 2004, available at
http://www.civilrights.org/issues/nominations/details.cfm?id=25096.
2
the Texas abortion statutes declared unconstitutional in Roe v. Wade had been repealed
for over thirty years and, thus, that McCorvey’s Rule 60(b) motion was moot. Allen
Parker, McCorvey’s attorney, told the Houston Chronicle that his client likely will
petition the United States Supreme Court to review the case.6
Although not discussed in the majority opinion, McCorvey’s Rule 60(b) motion
was based on new evidence of the emotional and physical harm caused by abortion, the
mitigation of the social stigma that surrounded unwed mothers in 1973, and of early fetal
sensitivity to pain.7 The evidence is described in more detail in Circuit Judge Edith
Jones’ concurring opinion. Specifically, McCorvey offered approximately one thousand
affidavits of women who claim to have suffered long-term emotional damage and
impaired relationships due to past abortions, as well as studies by scientists that suggest
that women may be affected emotionally and physically for years following an abortion
and may be more prone to engage in self-destructive conduct.8 McCorvey’s affidavits
also showed that most abortions today are performed at abortion clinics, where women
are herded through procedures with little counseling.9 McCorvey further contended that
the social stigma surrounding unwed motherhood, one of the harms feared by the Roe
court, has diminished considerably in modern times and, today, government programs
offer medical care and social services to children left in the care of the state.10 Finally,
McCorvey summarized recent neonatal and medical science that graphically portrays, as
science was unable to do thirty-one years ago, how a fetus develops sensitivity to external
5
FED. R. CIV. P. 60(b).
Challenge to Reopen Roe v Wade Fails, FEMINIST DAILY NEWS, September 20, 2004, available at
http://www.feminist.org/news/newsbyte/uswirestory.asp?id=8645.
7
McCorvey, 2004 WL 2035319 (Jones, Cir. J., concurring).
8
Id.
9
Id.
10
Id.
6
2
stimuli and to pain much earlier than was then believed.11 Judge Jones thus 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.”12
Although Judge Jones did not claim that McCorvey would have prevailed on the
merits of persuading the Supreme Court to reconsider the facts that motivated its decision
in Roe,13 Judge Jones did state that if the Court does not create another exception to the
mootness doctrine, the Court will never be able to examine its factual assumptions on a
record made in court.14
11
Id.
Id.
13
Id. (“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.”).
14
Id.
12
3