Federal Court Points Way to Reversing Roe v Wade

New Facts Must be Backed by New Legislative Effort

(October 21, 2004) – The effort of Norma McCorvey, the “Roe” of the 1973 Roe v. Wade case that legalized abortions, to have that landmark decision reversed has taken two steps forward and one step back. In the course of these events, a recent federal appeals court has suggested that a new legislative effort to ban abortions may be the final step needed to reverse Roe in light of new facts about the dangers of abortion.

The first step forward for McCorvey’s case was the Fifth Circuit Court of Appeals’ rejection of the grounds on which a lower court had previously dismissed McCorvey’s motion. The lower court had rejected McCorvey’s motion only hours after it was filed on the grounds that the motion was filed too long after the original decision and was therefore “untimely.” The appeals court, however, rejected the lower court’s reasoning since the governing rules don’t impose time limits on such motions.

This step forward was negated by a step back, however, when the appellate court raised a new argument against considering the motion. In a unanimous opinion, the three judge panel ruled that McCorvey’s motion was moot because the Texas laws prohibiting abortion had, by implication or fact, been repealed. In other words, if reversing Roe would not have any effect on Texas law there is no practical reason for the court to rule on the substance of McCorvey’s motion.

Invitation for New Legislation

Despite this setback, a second step forward was contained in a footnote of the decision. Here the appellate court noted that “an exception to this mootness rule exists where there is evidence, or a legitimate reason to believe, that the state will reenact the statute or one that is substantially similar.”

Some observers believe this is a signal that court would entertain McCorvey’s motion to reverse Roe if the Texas legislature, or perhaps another legislature in the Fifth Circuit, were to give it cause to do so by seeking to reenact a ban on abortion.

In a concurring opinion, Judge Edith Jones indicated that it was unfortunate that the case was moot since the thousands of pages of affidavits and evidence accompanying the motion “go to the heart” or the factual assumptions made in Roe. If the mootness issue were overcome, she observed, a review of these new facts might very well lead the Supreme Court to “conclude that the woman’s ‘choice’ is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.” (The important and forceful conclusions of Judge Jones should be read in full, below.)

Higher Death Rates Allow New First-Trimester Regulations

“This ruling is a green light signaling the need for renewed efforts to ban dangerous abortions,” said David Reardon, Ph.D., an expert on abortion complications whose affidavits were cited in the the McCorvey ruling.

In his affidavits cited by Judge Jones, and in a recently published law review article, Reardon summarized a series of recent medical studies demonstrating that abortion, even in the first twelve weeks, is linked to higher death rates than childbirth. This fact, alone, Reardon argues, opens the door to strict regulation of first trimester abortions, or even complete bans.

“Most people don’t realize it, but Roe specifically allows states to regulate or ban abortion to protect women’s health at that point in time when the risk of death associated with abortion exceeds that associated with childbirth,” said Reardon, who directs the Elliot Institute. “In 1973 it was believed that abortion during the first trimester was safer than childbirth, which is why the Court blocked any state regulations during the first twelve weeks. Now we know that abortion is more dangerous than previously thought, the mortality rate comparison which Roe set as the yardstick for determining the constitutionality of state laws now allows states much more liberty to regulate or ban abortions during the first trimester.”

Reardon believes the recent appellate court ruling in the McCorvey case, which took note of this new evidence, underscores the timeliness of a new approach to regulating abortions. He cautions, however, that any new effort to ban abortions must carefully address three key issues if it hopes to survive the next Supreme Court test. A model bill supported by the Elliot Institute was specifically designed to address these concerns.

Preventing a Return to Illegal Abortions

“First, we need to show the Supreme Court how we will prevent a return to ‘back alley’ abortions,” said Reardon. “As long as there is a fear that 1.3 million women will seek even more dangerous illegal abortions, the Court will bend over backwards to avoid reversing Roe.

“To prevent a return to illegal abortions, the threat of abortionists facing criminal prosecution must be bolstered by adding full exposure to civil liability. For example, in our bill we would also allow the woman and her spouse to sue anyone who attempted or completed an illegal abortion on the woman for reckless endangerment, plus any other injuries. The reckless endangerment alone would be defined as an injury and would require a minimum award of damages of no less than $400,000. In these cases, the plaintiffs would not have to prove any other injury. The same applies to anyone who aids or counsels her in performing a self-abortion.

“By opening the door to civil liability in this way, we aren’t reliant on the zeal of local prosecutors. Would-be abortionists would live in fear not only of the police, but also in fear of former clients. This double threat is the surest way to block any return to illegal abortions.”

Solving The Exceptions Conflict

“Second, any new laws must be constructed in a way that demonstrates an equality of respect for both the lives of women and their unborn children,” Reardon said. He pointed out that previous abortion bans were struck down, in part, because the courts interpreted any exception–even to save a woman’s life–as proof that the state does not truly believe the life of an unborn child is equal to the life of a woman. Otherwise, the state could not sanction the taking of one innocent life to save the life of another.

“This is a classic Catch-22,” Reardon said. “If the legislation does not allow exceptions to save a woman’s life, as in the case of an ectopic pregnancy, the court will strike it down for condemning women to death without a trial. Conversely, if that legislation allows that some medical treatments that involve killing an unborn child are legal, even in limited cases, the courts will once again construe that to mean that unborn children are not entitled to equal protection; adults matter more. From there it is a small step to concluding that threats to a woman’s life include any threats to her physical, emotional, or social well-being. That would bring us back to the requirement for such broad health exceptions that any restrictions are rendered meaningless.”

Is there any way out of this impasse? Yes. Reardon believes a solution has already been found by the highest court of Germany. Following World War II, the German constitution was drafted with very expansive protections of the right to life and human dignity from the moment of conception. When an effort was made to legalize abortion in Germany, the High Court struck them down. It concluded that German law cannot sanction abortion. On the other hand, the High Court reasoned, the constitution was silent about the degree of duty the State had to prevent or punish abortions. Therefore, while all abortions in Germany are technically illegal, as a matter of public policy the State does not prosecute abortions prior to the first trimester, with additional exemptions from prosecution later in pregnancy for other medical reasons.

While Reardon believes “the German solution” has been abused to allow unjustifiably broad access to abortions in Germany, he still believes that the German High Court identified the correct solution in regard to defining the proper position of the State in regard to abortions necessary to save a woman’s life.

“While the State can never justly endorse the killing of an innocent person, even to save the life of a mother, it is reasonable for the State to refrain from prosecution in such cases,” Reardon said. “Our model law follows this approach. It excludes licenced physicians from criminal prosecution for abortions that are reasonably related to protecting women’s lives. But it also prevents abuse of this exclusion by retaining and expanding civil liability in the event the abortion was actually unnecessary and unsafe–which covers 99 percent of abortions being done today.”

Tougher Liability Standards

This leads to the third element that Reardon believes should be included in any new ban: tough, stream-lined civil liability for negligent screening or recommendations that lead to unnecessary or unsafe abortions. He also believes this liability should be linked to a generous statute of limitations so women can sue for emotional injuries that may erupt even decades later.

“Civil liability is by far the best means of controlling renegade physician-abortionists,” said Reardon. “Without provisions like those included in our model bill, there will always be some abortionists who would try to turn the exclusion from criminal prosecution into a license to perform unnecessary and dangerous abortions.”

In short, the Elliot Institute model bill (1) defines all abortions as illegal, but (2) allows limited exemptions from prosecution for physicians who are reasonably acting to protect women’s health, while (3) providing that any physician performing an abortion is exposed to high liability risks if he failed to adequately screen for risk factors and verify to a high degree of medical certainty that the risks of not doing the abortion greatly outweighed the risks of doing it.

The Chances of Supreme Court Approval Are High

Reardon believes these provisions will eliminate over 99 percent of abortions, legal or illegal, surgical or chemical.

But would such a law be upheld by the current Supreme Court? Reardon answers with an unequivocal yes.

“The new evidence demonstrating that abortion is hurting women is overwhelming,” Reardon said.. “Even pro-abortion justices will be hard pressed to deny that abortionists should be held more accountable for ensuring that any abortions that are performed are more likely to benefit women than hurt them.

“Perhaps the best way of measuring how the Court will react is to look at this bill through the eyes of one of the key swing votes, Justice Sandra Day O’Connor. Abortion advocates criticize O’Connor for never seeing an abortion regulation she didn’t like, while pro-lifers criticize her for not being willing to completely repudiate Roe, even though she admits that Roe was ill conceived.

“But O’Connor is a pragmatist who. She won’t risk throwing out Roe if it will just drive women who have become accustomed to easy access to abortion into seeking dangerous, illegal abortions. This is why it is so important for us to provide a solution to the problem of illegal abortions is so important.

“Moreover, O’Connor, would love to see abortion go away, if (1) it can be done in a way that doesn’t hurt women, and preferably (2) it can be done in a way that doesn’t damage the credibility of the Supreme Court, which brought us down this path through its activist rulings. Our bill will passes both these tests. First, it uses civil liability to shut the door to back-alley abortions. But second, it also retains a key concept of Roe in that it protects physicians from criminal prosecution when they are acting in good faith to preserve their patients health.”

“Instead of using criminal sanctions to rein in renegade physician-abortionists, we are simply following the suggestion in Roe that the best way to stop physicians from performing unnecessary, unjustified, or unsafe abortions is through expanding civil remedies. To quote Roe, ‘the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.’

“In other words, our model bill provides the Court with a way to end the era of unregulated, unsafe, and unnecessary abortions that has followed Roe, without completely overturning the concept that physicians should not be subject to criminal prosecution when they are sincerely acting to save the life of their patients. By focusing on expanded civil remedies for unnecessary and unsafe abortions, we are following the one option left open by the courts that can truly reverse the deluge of abortions that followed Roe.”

The Elliot Institute’s model legislation can be found at www.afterabortion.org/leg.

McCorvey v Hill, Fifth Circuit Court of Appeals,

September 14, 2004

References and footnotes omitted. For the full decision, go to http://www.ca5.uscourts.gov/opinions/pub/03/03-10711-CV0.wpd.pdf

I agree that Ms. McCorvey’s Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas’s legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.

It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness [since McCorvey had already delivered her child when the Supreme Court took up the case] and brought forth, instead of a confined decision, an “exercise of raw judicial power.” [quoting White’s dissent in Roe]. Even more ironic is that although mootness dictates that Ms. McCorvey has no “live” legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.

McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women. who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision. Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions. Second, Roe’s assumption that the decision to abort a baby will be made in close consultation with a woman’s private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling. n8 Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through “Baby Moses” laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted. n9 Finally, neonatal and medical science, [*12] summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed. n10 In sum, if courts were to delve into the facts underlying Roe’s balancing scheme with present-day knowledge, they might conclude that the woman’s “choice” is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.

This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court’s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe. No “live” controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey’s evidence could be aired.

At the same time, because the Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey’s evidence. The perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter. This is a peculiar outcome for a Court so committed to “life” that it struggles with the particular facts of dozens of death penalty cases each year.

Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women’s mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal “viability” ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court’s constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

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