A bid to reopen 1973 abortion ruling
on Aug 4, 2006 at 4:57 pm
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.
