Concurring Opinion of Judge Edith H. Jones

McCorvey v. Hill, Fifth Circuit Court of Appeals, Sept. 14, 2004

Editor’s Note: references and footnotes have been omitted.

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 Justice 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.

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.

Finally, neonatal 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. 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 reevaluate 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.

Originally published in The Post-Abortion Review 12(4) Oct.-Dec. 2004.