A bid to reopen 1973 abortion ruling
Attorneys for an Atlanta woman, Sandra Cano, who was the “Mary Doe” in one of the Supreme Court’s two decisions establishing abortion rights in 1973, have asked the Supreme Court to reopen her case and overturn the ruling. Doe v. Bolton was decided along with Roe v. Wade on January 22, 1973. The new appeal is Cano v. Baker (docket 06-162), filed on Monday; it also suggests that Roe be reexamined..
The new petition parallels a similar move by the same attorney on behalf of Norma McCorvey, the Texas woman who was “Jane Roe” in the 1973 case in her name. The Supreme Court on Feb. 25 of last year denied McCorvey’s appeal (McCorvey v. Hill, 04-967). There was no recorded dissent from the denial in that case.
Since then, two new members have joined the Court — Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. When the nomination of each was before the Senate Judiciary Committee, the question of potential overruling of Roe v. Wade was a live issue, but one that did not change the outcome — Committee and Senate approval of both. Neither nominee would take a specific stand on that issue.
When the Supreme Court reaffirmed the “essential holding” of Roe in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, three of the present Justices were in the majority — Anthony M. Kennedy, David H. Souter and John Paul Stevens — and two were in the dissent — Antonin Scalia and Clarence Thomas. (Justices Stephen G. Breyer and Ruth Bader Ginsburg have joined the Court since then, but both were on the Court when the McCorvey petition was denied last year.)
In both the McCorvey and Cano petitions, attorney Allan E. Parker, Jr., of the San Antonio-based group, The Justice Foundation, made almost identical claims — that, since 1973, “significant changes in the factual conditions surrounding abortion demonstrate that abortion hurts women as shown by: the sworn testimony of women harmed by abortion; medical articles and studies since 1973 documenting abortion injuries; and, sworn evidence that abortion clinics in fact do not provide the normal doctor-patient relationship anticipated by Roe v. Wade and Doe v. Bolton. Significant changes also occured in legal conditions, including changes in the law of 46 states that have enacted ‘Baby Moses’ laws which transfer the burden of unwanted child care to society, and this Court’s Federalism jurisprudence restoring more autonomy to the states.”
The new petition, like the one in McCorvey, seeks reopening under federal court rule 60(b), which allows a federal court to relieve a party from a final judgment because, among other reasons, new evidence has been found, or “it is no longer equitable” for the judgment to remain in force. The Supreme Court famously allowed a Rule 60(b) motion in Agostini v. Felton (1997), a federal aid to parochial schools decision, and overturned part of a prior judgment in Aguilar v. Felton (1985).
In Cano’s case, the Eleventh Circuit Court ruled on Jan. 11 that the lower federal courts did not have the authority to reverse the Supreme Court’s 1973 decisions, and noted that the Supreme Court itself had not done so.
In the Roe decision, the Supreme Court interpreted women’s constitutional right of privacy to include a right to decide to end a pregnancy, in consultation with a doctor. In the Doe decision, the Court struck down on the basis of Roe Georgia’s requirements on medical procedures for abortions, including a requirement that two doctors concur in a woman’s decision to have an abortion.
The questions posed by the Cano petition follow. (The response to the petition is due Sept. 1.)
Closely tracking the questions presented in McCorvey, Cano’s petition lists these issues:
“1. Should the original judgment in Doe v. Bolton be vacated under Rule 60 due to the substantially changed factual and/or legal conditions that make it no longer just or equitable for prospective application?
“2. Is Petitioner Sandra Cano entitled uner rule 60 to any relief, substantive or procedural?
“3. Should the Court, at a minimum, require the district court to hold a hearing to afford fundamental due process that would lead to determining whether Doe v.Bolton and Roe v. Wade should be re-examined?
“4. Does the district court have a role in preparing the factual basis in a Rule 60 motion based on Agostini?”
The unsuccessful effort to reopen the Roe case had come in the Fifth Circuit. In that case, the Circuit Court found in September 2004 that that lawsuit had become moot because Texas no longer criminalized abortion. But the author of that opinion, Circuit Judge Edith H. Jones, also wrote a concurring opinion for herself, sharply criticizing the Roe decision and crediting the evidence of changed medical conditions since 1973.
I don’t understand how it is that Cano can petition to reopen this ruling since her own case is moot: in the original case, she wanted to have an abortion, the court allowed her to have it, and she did. Even if she now regrets having had the abortion, the court cannot change that. If this were an original action I would think it would be dismissed for failure to state a cause of action for which relief can be granted. The reasons cited by Cano’s lawyer may be reasons for the Court to reconsider the ISSUE, but they aren’t reasons for reconsidering her case.
Comment by billposer — August 4, 2006 @ 5:55 pm
Actually, Roe/Doe were class actions, and the name plaintiffs were not directly affected respecting the pregnancies at issue when the rulings began (the suits took longer than nine months for one thing).
Some years ago, in fact, I read that Doe’s daughter was pro-choice, in contra to her mother. She was pro-choice even though in theory she would not exist if her mother had the option to abort at the time. I wonder if there is a more up to date statement of the daughter’s views.
["Roe" too had her child.]
Still, this surely is not supportive of a good policy: revisiting rulings years after they were handed down by the plaintiffs themselves getting involved.
Agnosti is not really directly comparable. For one thing, the schools/parents harmed by not allowed gov’t services are different from Doe here — she is not deprived of a right not to have an abortion. And, her childbirth decision, again was not affected since the SC didn’t hand down its ruling until after she made it.
Second, it was argued that the law changed after the original ruling. The law changed somewhat here, but Casey overall accepted the “core” of Doe, so did not change it in a way that would warrant this sort of review.
A reading of the evidence and Roe itself suggests there is simply no relevant new “evidence” either that would justify a new result. [Others in a past thread disagreed, but simply put, I don't buy it.] But, if so, the proper way to go about it I would think is a new lawsuit in support of some local law (SD? Miss?) that limited abortion rights in the fashion sought here.
Comment by Joe — August 4, 2006 @ 6:37 pm
As much as Judge Pryor and I agree about Roe, these attempts to vacate the judgments are silly and are publicity stunts more than anything.
Comment by federalist — August 4, 2006 @ 7:08 pm
I agree with federalist in this case. I also don’t understand how it is that Cano can petition to reopen this ruling.
Comment by george_b3nson — August 6, 2006 @ 2:35 pm
Does anyone think that this is anything other than a publicity stunt? (I.e. would anyone in his right mind think that federal judges are so dishonest and political that this suit has a chance of succeeding?)
Comment by Subzero91 — August 7, 2006 @ 4:02 am
Cases like this raise an interesting question. Since the adverse party is the local D.A., and ultimately the State, the State AG has to expend resources for the defense of these actions. I suspect, however, that political considerations would hinder the desire of any defending entity from taking too hardline a stance by seeking Rule 11 sanctions.
Comment by CajunBarrister — August 7, 2006 @ 12:31 pm
I agree that this is a publicity stunt, which nobody expects to succeed. These people know how to count. Five Justices on the current Court are on record as supporting Roe in some form. There is no reason to think they’ve changed their minds, or that even if they had, they’d use a case in such a peculiar procedural posture to announce it.
The two new Justices have already shown that they’re *procedurally* conservative. They will wait to express their views in a case that reaches the Court in the usual way.
My prediction, for what it’s worth, is that at least one of the two new Justices, if not both, will adopt Justice Kennedy’s position — namely, that Roe remains good law for stare decisis reasons, but that reasonable restrictions on the procedure are Constitutional. To put it another way, the Scalia/Thomas position will attract, at most, one new vote.
Comment by Marc Shepherd — August 7, 2006 @ 3:15 pm
In response to billposer’s August 4 comment: “[Cano] wanted to have an abortion, the court allowed her to have it, and she did.” — As with Norma McCorvey, the “Jane Roe” of Roe v. Wade, Ms. Cano did NOT have an abortion, nor did she ever want one. Like Ms. McCorvey, Sandra Cano was shamelessly used by pro-abortion feminist attorneys. Please get your facts straight.
Comment by Valerie M. — August 7, 2006 @ 5:46 pm
I have read various accounts on the abortion movement and so forth and this business of them not ever wanting an abortion is news to me.
In fact, it is clearly on the record “Roe” even went to the degree of lying and saying she was raped in the hope it would help her have an abortion. But, Texas only had a life exception, though the state’s atty admitted they sometimes looked the other way in such cases.
One or the other might have been at some point conflicted, but this is somewhat besides the point. They were names in a class action and the ultimate claim was the right to choose. This includes choosing not to have an abortion.
Needless to say many women, sometimes in various lawsuits, clearly wanted to have the right to choose. This includes some women from Texas and Georgia.
Comment by Joe — August 7, 2006 @ 11:28 pm
Joe, please don’t twist what I said. I was addressing the incorrect statement made by “billposer” that Sandra Cano HAD an abortion. Sandra Cano did NOT have an abortion, nor did she ever want one. It was others who wanted her to have an abortion. She resisted. Norma McCorvey, on the other hand, said she was duped into thinking she wanted an abortion, although ultimately, she never had one.
While there will always be women who “celebrate” their “right to choose” to kill their unborn children, there is also a sinister force at work in our culture which has succeeded in convincing poor women that this “right to choose,” this “right” to allow a tiny, developing child to be sucked into a jar or ripped limb from limb, is for their benefit when, in reality, it is nothing more than a ruse to keep the poor from reproducing. (See pages 61-64 of the “Clinton RU-486 Files” where Attorney Ron Weddington, co-counsel in “Roe v. Wade,” wrote to a newly elected President Clinton, urging him to use “persuasion” to promote birth control and abortion among the poor because “. . .we don’t need more poor babies.” http://www.judicialwatch.org/archive/2006/jw-ru486-report.pdf).
Finally, your bizarre conclusion that these two lawsuits actually defended Norma McCorvey’s and Sandra Cano’s right to CHOOSE LIFE makes me believe that you would make a great swamp salesman. This gator isn’t buying!
Comment by Valerie M. — August 8, 2006 @ 12:48 am
I myself corrected Bill’s erroneous assumption. See the second post on the thread.
Since you argue that the women were dupes, I’m not sure how I twisted your words. I simply don’t see this on the evidence. The fact the women themselves later felt victimized doesn’t really change this. Some might say they were used by the pro-life side.
Given reality dictates that they wouldn’t have had an abortion given the time lag of the lawsuit, the duping was esp. hard to understand. They were apparently duped in supporting the rights of other women to make choices they themselves might not want to make. Ok. Again, it was a class action.
The right to choose includes not being forced to have an abortion, sterlized, and so forth. I respect your understanding of “respecting life,” though it is contra to the beliefs of major religions and so forth. Again, the rulings gave women the right to honor their own moral choices in this greatly disputed issue.
This includes, “abortion on demand” canards aside, physicians. Thus, Doe v. Bolton notes: “a physician or any other employee has the right to refrain, [p198] for moral or religious reasons, from participating in the abortion procedure.”
Such reasoning is now in part used by pro-life supporters to argue pharmacists need not sell morning after pills and so forth. A tad bit ironic.
Comment by Joe — August 8, 2006 @ 7:29 pm
Joe, again, you are trying to turn a decision that legalized the killing of human beings in the womb at any time during a pregnancy for any reason on its head by suggesting that we should be grateful to the Supreme Court for preserving two of the most basic rights of United States citizens – liberty and religious freedom. Should an employer or a government be able to force a health care worker to commit an act that he or she believes is intrinsically evil or which violates his or her religious principles? The Supreme Court said NO when it pertains to abortion, the deliberate termination of a pregnancy. What about the so-called “morning after” pill then? Scientific literature lists eleven possible modes of action for emergency contraception, seven of which can be abortifacient, that is, designed to prevent the implantation or survival of the embryo. By definition, an abortifacient is a substance or device which terminates a pregnancy. Therefore, an abortifacient substance or device causes an abortion. Conclusion? The same legal principle that protects healthcare workers from abortion providers protects pharmacists from sellers of abortifacient substances or devices. The irony here is that the basis for the rulings which gave women “the right to honor their own moral choices” ALSO protects the rights of pro-life supporters to honor THEIR own moral choices. Don’t you just love irony, Joe?
Comment by Valerie M. — August 9, 2006 @ 12:25 am
I stand corrected about Roe having had an abortion, but that doesn’t actually change my point, which was that she has no cause of action for which the court can grant her relief. Nor do I see how the suit having been a class action changes this. What harm is done to her by the lack of a legal prohibition against abortion for which the court can grant her relief? She cannot simply argue that abortion is in general terms immoral or bad public policy as decisions of that nature are clearly within the province of the legislature.
Comment by billposer — August 9, 2006 @ 5:11 pm
Oops, I meant Doe=Cano, not Roe.
Comment by billposer — August 9, 2006 @ 5:12 pm