No Go for Jane Roe Yet

The 5th U.S. Circuit Court of Appeals last week dismissed an appeal of the U.S. Supreme Court's landmark 1973 Roe v. Wade decision that legalized abortion. In their published opinion, the court ruled that the appeal was moot, yet one justice, while concurring with the court, issued an opinion imploring the U.S. Supreme Court to review Roe.

Norma McCorvey, aka Jane Roe, filed suit last summer in Dallas County against District Attorney Bill Hill – successor several-times-removed to original Roe defendant Henry Wade – to have her case reopened. McCorvey now argues that abortion harms women – both emotionally and physically – and that social norms have changed, making single motherhood a more palatable option.

Her challenge was denied in district court, and the 5th Circuit last week dismissed the challenge as moot – McCorvey's suit comes too long after the case was initially decided and long after the state law criminalizing abortion was repealed. However, 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."

Of course, Judge Jones' less-than-dispassionate feelings on this subject have already troubled a lot of observers. To read the entire opinion, go to www.ca5.uscourts.gov/opinions.aspx. (The case is styled McCorvey v. Hill.)