Roe v. Roe? Too Late, Texas Judge Says
BY Ellen Rossini
June 29-July 5, 2003 Issue | Posted 6/29/03 at 2:00 PM
DALLAS — It's too late.
That was Judge David Godbey's answer to Norma McCorvey after she sought to overturn Roe v. Wade, the Supreme Court's abortion decision that she had helped to bring in 1973.
McCorvey in recent years publicly identified herself as the anonymous “Roe” in the original case, joined the prolife Operation Rescue movement and became a Catholic.
Godbey, of the U.S. District Court for the Northern District of Texas, ruled June 19 that McCorvey's motion was not made within a “reasonable time” after the 1973 decision.
“Whether or not the Supreme Court was infallible, its Roe decision was certainly final in this litigation,” Judge Godbey wrote in a ruling issued June 19, just two days after McCorvey filed her motion at the Earl Cabell Courthouse in Dallas.
It was in this courthouse in March 1970 that McCorvey, her identity concealed as “Jane Roe,” signed the affidavit that would lead to the striking down of all state laws restricting abortion.
Her current lawyer, Allan Parker, said his client likely will ask the court to reconsider. “I think the judge has misunderstood the case,” Parker said. “This is not a case of newly discovered evidence, which must be brought in a short amount of time. It's a case of changed factual conditions and law.”
Indeed, McCorvey's action — called a “rule 60 motion” — was a civil procedural rule that allows a federal court to reopen a case if changes in facts or laws make it unfair for the court's previous judgment to continue to be applied, Parker said.
There is no time limit on the rule, he added.
Godbey disputed that, saying such requests must be made weeks or months after the original judgment.
But Parker said that in a 1997 churchstate case, the Supreme Court reversed its own ruling 12 years after its original judgment.
McCorvey's motion was considered a long shot, though some pro-life leaders saw it as a teaching moment.
For three years McCorvey has worked with the attorneys from the Justice Foundation in San Antonio to bring her case back to court — which she has a right to do as party to the original litigation, Parker said.
The changes in facts and laws cited by Parker include: the harm that abortion has caused to women, which he said could not have been known in 1973; the “Baby Moses” laws, through which Texas and 40 other states have taken on the burden of unwanted children, thereby eliminating the need for a pregnant woman to have an abortion; and new scientific evidence of the humanity of the unborn child.
“What Norma McCorvey will teach the court is that abortion is a totally unworkable solution,” Parker said.
He had hoped the court would read the 54-page motion and its 5,400 supplementary pages of sworn testimonies from experts and more than 1,000 post-abortive women to be considered by a federal district judge.
Cathleen Cleaver, spokeswoman for the U.S. bishops' prolife activities office, thought McCorvey's motion was “a very clever approach,” and that its filing was a “testament to the real experience women have with abortion.”
“Women's lives have been torn apart by abortion,” Cleaver said.
On the day she filed her motion, McCorvey was joined at a press conference by 60 women from eight states and Canada, many of them holding signs saying, “I regret my abortion.” Several told tearful stories of the psychological and emotional havoc that followed their abortions.
“Even if someone only sees a woman [on television] holding a sign that says, “I regret my abortion,” that introduces a whole new side to the abortion issue,” Cleaver added.
Darla St. Martin, associate executive director of National Right to Life, agreed that the more women speak out publicly about their actual experiences of abortion the better. But she was skeptical of the motion's success.
“Roe v. Wade will be overturned when we have five Supreme Court judges intellectually honest enough to recognize the Constitution does not contain a right to abortion,” she said. “It could be overturned in a number of different ways.”
What makes this case different from others that have come before the court is that it does not nibble at the edges of the ruling but takes it on in its entirety, said Ellen Dorn, a Dallas attorney and the civic action director for the Catholic Pro-Life Committee of North Texas.
“In all the other cases, the judges' choice to completely overturn [Roe] would have been really surprising,” she said. “Judges tend to not want to completely overturn something. The genius of this is that this puts the decision square in front of them. They don't have the option to narrow it. They're being asked to throw it out, the actual case itself.”
The challenge is that the lawyers are asking the judges to rule very broadly and liberally on procedural grounds, Dorn said.
“The way judges work, they really construe things narrowly,” she said. The motion is “beautifully crafted and it makes a great case. But it's asking the court to do something it's really not inclined to do.
“What is the downside of asking? There's not really much. They've given God a really nice tool to do a miracle.”
Kate Michelman, president of the pro-abortion organization NARAL Pro-Choice America, dismissed the motion as “another sad anti-choice publicity stunt.”
“Instead of leaving private medical decisions up to a woman and her doctor, anti-choice forces want the government to decide,” a NARAL statement said.
St. Martin countered the “women and her doctor” approach to abortion laws.
“You're talking about a human being,” she said. “In general terms, in terms of our society, there are tremendous consequences if your method of solving problems is to kill human beings rather than to find more positive solutions to your problems.”
For post-abortive women, the consequences become very deep and personal, she said.
At McCorvey's announcement, a dozen women told their stories of harm from abortion, ranging from physical injury and breast cancer to years of substance abuse, promiscuity, attempted suicide and subsequent abortions to cope with the emotional and spiritual pain of having chosen the death of their unborn children.
Father Frank Pavone of Priests for Life said the power of McCorvey's motion is not in its likelihood of overturning Roe but rather its cultural significance.
“A case whose plaintiff has changed her mind is psychologically weakened. In the cultural war over abortion, these symbolic and psychological aspects play a very big role,” he said.
Father Pavone, who is a personal friend of McCorvey, said this step is very meaningful for her.
“It may surprise people to know that from the very day Roe v. Wadewas decided, Norma did not feel any sense of victory,” he said. “She was not celebrating on Jan. 22, 1973. From the beginning, she knew she had been used and that the decision was a sad day for America. Now she has found healing in Christ and in the Church, and her action in presenting this motion is precisely a sign of her healing. In her strength, she is fighting back against this decision, which wounded her so much.”
Ellen Rossini is based in Richardson, Texas.
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