|VOL. 5, NO. 6||June 20, 2003|
|Reopening Roe: A View From the Inside|
By: Virginia C. Armstrong, Ph.D., National Chairman, Court Watch
Constitutional history was made on June 17, when Norma McCorvey, the "Roe" of Roe v. Wade, asked the same U. S. District Court which decided for her exactly 33 years ago to reopen her case. In the first case, McCorvey's petition attacked the Texas law regulating abortion; and the U. S. Supreme Court in 1973 threw out the Texas law, plus the laws of 32 other states. The Supremes ruled that a woman has a "fundamental constitutional right" to an abortion (although the 1973 Court admitted that it was not quite sure in which constitutional provision the "right" is rooted). McCorvey now asks that the 1973 ruling no longer be applied because of changes in law and factual circumstances.
Court Watch's National Chairman, Dr. Virginia Armstrong, is a part of the McCorvey team, serving as the constitutional issues specialist on McCorvey's Media Advisory Committee. Virginia has participated in media planning conferences, and she wrote the "Summary of Rule 60 Motion" distributed in the press packets following McCorvey's filing. Rule 60 is not commonly used, but was deemed appropriate by McCorvey's attorneys in this highly unusual case.
On Thursday, June 19, barely three days after the filing, U. S. District Judge David Godbey, in a very fast decision, denied McCorvey's motion to reopen her case. He also denied McCorvey's request for a three-judge panel to hear her motion, although such a panel was employed when the original district court heard her first case in 1970. There is no statutory or case law limit on these filings, and what constitutes a "reasonable time" is left to the judge(s)' determination. But Godbey ruled that the Rule 60 motion "was not made within a reasonable time due to the length of time alone [30 years]." Godbey's ruling that McCorvey's motion was not timely comes despite the fact that substantial portions of the legal and factual changes argued by McCorvey and included in her brief have occurred much more recently than 1973. Judge Godbey asserts that McCorvey does not properly discuss "timeliness," contending that "with reasonable diligence, the additional evidence she tenders could have been presented long before 2003 [italics added]." He also does not address the application here of Agostini v. Felton, a 1997 U. S. Supreme Court decision in which the High Court granted a Rule 60 motion and over-ruled its earlier decisions of 1985. Godbey concludes that "Other parties in other cases may be able to reexamine [the issue of the justice of continuing to apply Roe], but not McCorvey in this case."
Allan Parker, McCorvey's lead attorney, says his client is likely to ask the court to reconsider its denial of her motion. Court Watch will keep you abreast of developments in this case, which raises the most fundamental issue of our culture and Constitution: what is a "person," and what (if any) human beings are empowered to answer that question.