Abortion is the most polarizing issue in America. It has been for 30 years, since the Supreme Court, in Roe v. Wade and its companion case, Doe v. Bolton, found that women had a constitutional right to abortion. The Court’s rationales were not rooted in anything in the Constitution, yet the decisions pushed aside states’ abortion laws, many over a century old. Protected from politics, abortion rights became a lighting rod, a talisman of feminists, and an abomination to abortion opponents. U.S. Senators have made judicial nominees’ views of Roe v. Wade a de facto Test Act. It is strange that a novel legal challenge to something so controversial, and a compelling human-interest story, has attracted so little media coverage. Do our opinion-shapers fear that this challenge may succeed?
Allan E. Parker Jr. is a human-rights lawyer in Texas. He founded and runs The Justice Foundation in San Antonio. Parker believes Doe and Roe were wrongly decided and that there is a promising way to challenge them using the Federal Rules of Civil Procedure (FCRP) that govern federal trials. Parker’s approach differs from previous challenges in not relying primarily on arguments about the right to life of unborn children and constitutional errors in the decisions. Those arguments are true—and tried. No majority of justices has heeded them, even in a challenge to the flagrant barbarism of partial-birth abortion. Something different is needed, that “gives the Supreme Court a graceful way out of the problem it is in” over abortion, as Parker says. Rule 60 of the FRCP and Parker’s plaintiffs may be that something.
Rule 60 provides that “on motion and upon such terms as are just, the court may relieve a party … from a final judgment … for the following reasons: … it is no longer equitable that the judgment should have prospective application.” The original plaintiff may return to court to ask that a judgment be reversed if it is now unjust. There is no statute of limitations.
To bring Rule 60 motions challenging Roe and Doe, Parker needed Roe and Doe. Thirty years later, they had to be still alive, competent, and willing to overturn the decisions that created abortion on demand. Unlikely, one would think, yet both Roe and Doe are available, pro-life, and very willing to sue. Jane Roe is Norma McCorvey; Mary Doe is Sandra Cano. Represented by Parker, McCorvey has sued in the Dallas federal court where Roe began, and Cano is suing in the Atlanta federal court where Doe started. The goal is to get either case (ideally both) back before the Supreme Court.
McCorvey and Cano have similar stories. Young, poor, and poorly educated, they were used, first by the men in their lives, then by feminist lawyers looking for plaintiffs to challenge abortion laws.
McCorvey’s Rule 60 affidavit tells how, pregnant and homeless in 1969, she saw an adoption lawyer who referred her to two young lawyers, Sarah Weddington and Linda Coffee. Over pitchers of beer they talked McCorvey into being their plaintiff to challenge Texas’s abortion law. She was ideal: “You’re white. You’re young, pregnant, and you want an abortion.” In fact, McCorvey wasn’t sure what an abortion was and in the end never had one. She signed her affidavit unread.
There was no evidence at trial about the reality of abortion or its effects on women. Following Roe v. Wade, McCorvey’s life was a fog of drink, drugs, despair, and work in abortion clinics, punctuated by suicide attempts. What she saw in those clinics fed a growing remorse about her role in making abortion common. Nevertheless, she was a pro-choice heroine, until she came to Christianity in 1995 through an old adversary, Operation Rescue’s Rev. Flip Benham. In 1998, McCorvey was received into the Catholic Church. She is a greater force in the pro-life movement than she ever was for the other side—with her own organization, Roe No More Ministries and an autobiography, Won by Love.
Sandra Cano’s Rule 60 affidavit says that she never wanted an abortion. In 1970, 22, pregnant with her fourth child, and abandoned by her husband, Cano sought a legal-aid divorce. Her lawyer, Margie Pitts Hames, gave her some papers, which Cano did not read, thinking they were for a divorce. They were an affidavit saying she wanted an abortion and was suing to overturn Georgia’s abortion law. Cano only suspected what she had really signed when her mother and Hames tried to take her for an abortion. Cano refused and eventually fled to Oklahoma to avoid them. Back in Atlanta, she appeared at trial but did not testify. Like Norma McCorvey, Sandra Cano never had an abortion. In 1998, angry and feeling used, Cano sued to unseal the trial records. Hames opposed her, but Cano prevailed. Those records stated, falsely, that Cano had applied for an abortion and was turned down, then sued the state of Georgia. They contained a fictitious account of Cano’s petitioning a nine-doctor abortion panel. Cano believes that abortion is not in any mother’s interest but a false solution imposed on mothers by others.
Rule 60 sets a high, but not impossible, standard. The Supreme Court’s test is whether a significant change in factual conditions or the law since the original decision makes continued application of the judgment unjust. Parker’s Rule 60 motions argue that both the facts and the law have changed so much since 1973 that it is unjust to continue to apply Doe and Roe.
On the facts, Doe and Roe assumed that what is aborted is not a human being and that abortion does not harm women. The Supreme Court asserted that no one can determine when life begins, justifying abortion on demand early in pregnancy. Noting that the Constitution would require that the uncertainty be resolved in favor of life, Parker argues, with a battery of medical support, that abundant new DNA evidence shows that a unique human life begins at conception.
The Court considered no evidence of the effects of abortion on women. Parker offers 5,565 pages of affidavits from over 1,000 women attesting to the harm they have suffered in body, mind, and spirit after aborting their children. Their affidavits are painful reading and make a strong case that women who abort can suffer devastating psychological and physical trauma. The Supreme Court presumed a professional doctor-patient relationship. The women’s affidavits show that very rarely happens in abortion. Mothers usually decide to abort under pressure from others, with no professional advice other than the clinic’s own pressure to abort.
On the law, subsequent Supreme Court cases, while upholding Doe and Roe, have weakened their holding that abortion is a “fundamental right.” More important, in 1997’s Washington v. Glucksberg, the Court defined a constitutionally protected fundamental right: it must find a cognizable basis in the Constitution’s language or design and be so rooted in the traditions and conscience of our people as to be ranked as fundamental. A criminal offense for most of our history, abortion would seem not to qualify.
Most important, the Supreme Court’s rationale that women need abortion to avoid unwanted motherhood has been undermined by the passage of “Baby Moses” laws. Starting with Texas, 41 states, including Georgia, have recently passed laws allowing a mother to relinquish her baby for adoption or foster care for any reason soon after birth. The state guarantees the child’s care until age 18. Baby Moses laws, Parker argues, provide mothers the freedom the Court thought it was giving them through the more drastic expedient of abortion. They also offer state solutions to the problem, in keeping with the Supreme Court’s recently renewed emphasis on federalism.
Parker’s challenge to Doe v. Bolton as well as Roe is wise. The Georgia statute that Doe overturned was more permissive than the Texas law Roe struck down. Unlike Roe’s convoluted trimester scheme, Doe allows abortions at any time in a pregnancy. Late pregnancies may be aborted on a single doctor’s judgment that continuing the pregnancy would injure the mother’s health (health, undefined, is a catch-all). Doe, not Roe, is the father of partial-birth abortion and the more important case to overturn.
Although Judge David Godbey in Dallas, a George W. Bush appointee, dismissed the Roe challenge immediately, saying “it’s too late” to reconsider Roe, an appeal is pending before the Fifth Circuit Court of Appeals, several of whose judges might view the Rule 60 motion favorably. The challenge to Doe is before Judge Owen Forrester in Atlanta. Forrester, a Reagan appointee, upheld Georgia’s prohibition of partial-birth abortion. One intriguing possibility is that the two cases might lead to a split in the federal circuit courts, which the Supreme Court would have to resolve. The Court would then have to reconsider Roe and Doe. Judge Godbey notwithstanding, it is never too late to reconsider bad precedent and return to the Constitution. If it were, Dred Scott would still be the law of the land.
Howard Sutherland is an attorney in New York City.
November 3, 2003 issue
Copyright © 2003 The American Conservative