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VOL. 5, NO. 11 Aug. 28, 2003

"Roe" and "Doe" Return to Court: "Stop the Carnage!"

Virginia C. Armstrong, Ph.D., National Chairman, Court Watch

The U. S. Supreme Court's elevation of abortion-on-demand to the status of a "fundamental constitutional right" was accomplished with two decisions on January 22, 1973. The more famous of the two cases is the Texas case of Roe v. Wade. But of immense significance also is the neglected step-sister of this devastating decisional duo—the Georgia case of Doe v. Bolton. Now, after the passage of thirty years and the murder of over forty million unborn children, the original plaintiffs are asking the courts to correct the fatal constitutional flaws of the two 1973 decisions and stop the carnage.

Both women reveal in their sworn affidavits that they were manipulated and duped by their attorneys and had no intention of trying to legalize abortion. The former "Roe," Norma McCorvey, on June 17, 2003, asked U. S. District Judge David Godbey in Dallas to reconsider her case and rule the 1973 decision no longer valid. With almost blinding speed, Judge Godbey denied McCorvey's motion. That denial will soon be appealed to the Fifth Circuit Court of Appeals. Now, the former "Mary Roe," Sandra Cano, is asking for her day in court, petitioning the U. S. District Court for the Northern District of Georgia to reconsider the 1973 constitutionalization of abortion—one of the most barbaric of all medical procedures.

The Georgia law which was originally thrown out by the U. S. Supreme Court in Doe was significantly different from the Texas law invalidated in Roe. The Texas law, basically a "prohibitive" type of legislation, prohibited an abortion except when "necessary to protect the life or the health of the mother." The Georgia law also criminalized abortion, but included several exceptions which were "permissive"—i.e., permitted abortion under much broader circumstances than in Texas. Two differences in the Roe and Doe rulings are fundamental.

  • Timing of the abortion. The "trimester" scheme for determining the time limits on a woman's "right to an abortion," which was central to Roe, was almost ignored in Doe. The latter decision thus expanded "abortion rights" to encompass virtually the entire pregnancy.

  • Choice to abort. In Doe, the Court voided the Georgia law's requirement of approval of an abortion by multiple physicians. The Court instead permitted a pregnant woman to choose an abortion upon the advice of a single physician. And this physician needed to justify his judgment to perform an abortion upon no ground other than "his best clinical judgment that an abortion is necessary because continuation of the pregnancy would seriously and permanently injure [the mother's] health." Into the wide-open spaces of this extremely indefinite permission eagerly marched the seven-member majority of the Court, further expanding the law's indefinite permissiveness by authorizing the doctor in exercising "his best clinical judgment" to do so "in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to his patients well-being." Such permissiveness left the choice to abort with no fixed limits.

The San Antonio attorney now representing Roe and Doe, Allan Parker, is employing an unusual legal vehicle to reach the U. S. Supreme Court—a "Rule 60 Motion." A Rule 60 motion asserts that the continued application of an existing judgment is "clearly erroneous" and/or will be productive of a "manifest injustice" due to a change in law or factual circumstances. Parker's procedure is in line with the 1997 U. S. Supreme Court decision in Agostini v. Felton, an establishment of religion case. In that case, the Court granted the Rule 60 motion and over-turned two decisions it had made twelve years earlier.

McCorvey and Cano now present to the courts a massive array of evidence documenting fundamental changes in both law and fact—evidence not available in 1973. Because of these changes, the continued application of the original Roe and Doe ruling will wreak severe injustice, they contend, and the original rulings should be voided.

  • Relevant changes in factual circumstances include
    • A massive body of evidence never before presented to an American court that abortion hurts women—physically, mentally, and emotionally; 
    • Proof that abortion is often not a voluntary, informed decision of the patient, but the result of pressure by others on the woman; 
    • Proof of the humanness of the unborn child provided by such technology as ultrasound, in-utero surgery, DNA technology, and neo-natal care advancements.

  • Relevant changes in law include
    • Court redefinition of a "fundamental right," which excludes the right to an abortion; 
    • The direct undermining of abortion-on-demand by abortion decisions since 1973; 
    • The passage by the Texas Legislature (1999) and the Georgia Legislature (2002) of laws providing state care for children so that no mother has to bear the burden of an "unwanted child" about which the Supremes seemed to be so concerned in 1973.

Because of the recent emergence of much of this evidence, the motions for reconsideration of the two 1973 decisions are timely and should be granted. Denial of the motions would perpetuate the injustice of current law and the deception under which this law was framed. The most vulnerable members of society—the unborn child and, very often, their unprotected mothers—will continue to be abandoned by the justice system. Well should the courts reflect on the fact that pregnancy is for nine months; abortion is forever.




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