September 16, 2004,
It took the woman formerly and perhaps forever known as Jane Roe to bring to light the biggest problem facing today's defenders of abortion. A recent attempt by Norma McCorvey to re-open her original lawsuit which successfully challenged Texas's criminal prohibition on abortion the suit that became Roe v. Wade was rejected this week by a federal appeals court in New Orleans. So while Roe v. Wade and its offspring still jealously guard abortion "without excuse and without apology," as its most ardent supporters would have it, a separate opinion in McCorvey's recent case shows that the law is having one hell of a time keeping ahead of the facts. As Judge Edith Jones poignantly writes in McCorvey v. Hill, major advances in both "hard and social science" since the 1973 Roe decision make the case for constitutional protection of abortion increasingly difficult to maintain with a straight face.
Sometime in the last decade or so, Norma McCorvey realized that she had been an unfortunate pawn in the battle over abortion rights and switched sides in the debate, recently describing herself "one hundred percent pro-life." Convinced that the decision that bore her pseudonym was a travesty of law, she filed a motion last year to re-open the original decision, declaring at the time: "I deeply regret the damage my original case caused women. I want the Supreme Court to examine the evidence and have a spirit of justice for women and children." McCorvey and her lawyers submitted in support of her motion the sworn testimony of more than one thousand women who had had abortions and claimed to have suffered long-term emotional damages and damaged interpersonal relationships as a result of their "choice." McCorvey's new suit, filed 30 years after the original decision, never had much of a chance, since it sought to reestablish criminal laws that had long since been removed from Texas's books. It is not surprising then that the court of appeals held that the case should be dismissed.
What was surprising, though, was Judge Edith Jones powerful five-page separate opinion. While Judge Jones agreed that the court had no power to reopen the original Roe decision, her opinion assures that McCorvey's arguments did not fall entirely on deaf ears. Calling the original decision, an "exercise in raw judicial power," Judge Jones observed that McCorvey's voluminous new evidence "goes to the balance Roe struck between the choice of the mother and the life of her unborn child." Citing both the testimony of post-abortive women and scientific studies, Judge Jones reasoned that the evidence "suggests 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." The same evidence took aim at the myth of a close collaborative relationship between abortionist and patient. Testimony of workers at abortion clinics showed that "women are often herded through their procedures with little or no medical or emotional counseling." Indeed, one former abortion clinic worker described how abortion physicians she worked with would work on commission and perform 10 to 12 abortions per hour.
Judge Jones further cited evidence showing dramatic advances in the sociological status of women especially unwed women that undermine the necessity of abortion. "No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even...the option of leaving a newborn directly in the care of the state until it can be adopted."
But perhaps most importantly, Judge Jones cited evidence showing that neonatal and medical science "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." The evidence reviewed by Judge Jones on the issue of fetal pain was similar to that produced by the federal government in recent trials on the constitutionality of partial-birth abortion. There, an Oxford-educated specialist in neonatal pain, Dr. Kanwaljeeet Anand, testified that unborn children are likely to feel pain in the womb by 20 weeks of gestation perhaps even earlier and that abortion could therefore cause excruciating pain for an unborn child. Reviewing similar evidence before her, Judge Jones concluded that "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."
One need only pick up a newspaper to know that Judge Jones is correct and that knowledge presents the biggest threat to the abortion movement today. Recent advances in ultrasound technology show in utero babies walking or smiling in the womb much earlier than once thought possible. The National Abortion Federation's main response to claims that partial-birth abortion caused severe pain to the unborn has been to note that most other abortions do too. But that sort of candor is in short supply among abortion advocates. It's little wonder that doctors and hospitals that supported the recent challenge to the federal partial-birth-abortion ban fought so hard to keep their medical records from seeing the light of day. The more the truth of their practices is exposed to sunlight, the less public support they can claim.
Hard and social science will of course progress even though the Supreme Court averts its eyes.... One may fervently hope that the Court will someday acknowledge such developments and reevaluate Roe...accordingly. That the Court's constitutional decisionmaking 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.
Norma McCorvey's new lawsuit never had a chance. But perhaps she's done her new cause a great service in helping to expose the truth. Maybe, just maybe, Judge Jones's plaintive cry is one step in a long battle to undo the mess that McCorvey and her friends once made back in the day she was otherwise known as Jane Roe.
Shannen W. Coffin is a former deputy assistant attorney general for the Civil Division of the U.S. Department of Justice.