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Fed. court refuses to revisit Roe, but judge blasts 1973 ruling

NEW ORLEANS (BP)–A federal appeals court panel refused to revisit the Roe v. Wade decision Sept. 14, although one of the judges took the opportunity to blast the controversial abortion ruling by calling it an “exercise of raw judicial power.”

The three-judge panel of the Fifth Circuit Court of Appeals unanimously voted to dismiss a case brought by Norma McCorvey, who was the “Jane Roe” in the landmark 1973 decision legalizing abortion. Although she sued then to legalize abortion, she has since had a change of heart and wants to see the decision overturned.

At issue in Roe v. Wade was a Texas law that outlawed abortion.

“Suits regarding the constitutionality of statutes become moot once the statute is repealed,” Circuit Judge Edith H. Jones wrote in the opinion.

Because Texas currently has laws regulating abortion — such as a law limiting the availability of abortion to minors — the original Texas statute outlawing abortion has been repealed by implication, Jones wrote. McCorvey’s lawyers say they will appeal the dismissal to the U.S. Supreme Court.

But Jones, a nominee of President Reagan, also wrote a separate concurring opinion — signed only by her — in which she criticized the Roe court and expressed her hope that the U.S. Supreme Court someday would revisit the case.

She even used the phrase “unborn child.”

“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,” Jones wrote. “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.”

Jones asserted that current abortion law originated out of an “exercise of raw judicial power.”

“Hard and social science will of course progress even though the Supreme Court averts its eyes,” she wrote. “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.”

“Casey” is Planned Parenthood v. Casey, the 1992 Supreme Court decision that upheld Roe v. Wade but allowed some restrictions.

“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,” Jones wrote.

Jones then listed McCorvey’s evidence, apparently acknowledging that she agreed with it.

McCorvey’s lawyers presented thousands of affidavits from women who had abortions and who claimed to have suffered emotional damage.

“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,” Jones wrote.

Unlike what was originally intended at the time of Roe, McCorvey’s lawyers said, abortion decisions are not made in close consultation with the doctor.

“According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling,” Jones said.

In addition, McCorvey’s lawyers argued that the stigma of having a baby out of wedlock has changed in the last three decades.

“No longer does the unwed mother face social ostracism,” Jones wrote, “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.

Lastly, Jones noted, science has changed.

“[N]eonatal and medical science, 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,” she wrote. “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.”

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  • Michael Foust