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HOUSTON — For the first time in more than 31 years, an original litigant in Roe v. Wade will be before a federal appeals court asking it to reconsider the most controversial U.S. Supreme Court decision in modern history. On March 2, the Fifth Circuit U.S. Court of Appeals will hear arguments in McCorvey v. Hill, a case that pits the original plaintiff in Roe v. Wade against the Dallas district attorney over the right to obtain a legal abortion. Since the 1973 opinion, Norma McCorvey — the plaintiff better known as Jane Roe — has changed her views on abortion. Last year, she filed a motion in U.S. District Court in Dallas requesting that Roe v. Wade, the landmark case legalizing abortion, be reversed. Bill Hill is the elected successor to the late Dallas County District Attorney Henry Wade, who was the chief law enforcement officer in 1973 charged with enforcing a Texas law that made abortions illegal in the state and prevented McCorvey, a Dallas resident, from obtaining an abortion. Hill did not file any documents with the Fifth Circuit in response to McCorvey’s appeal, leaving the court in the unusual position of hearing an argument in a highly controversial case from the point of view of only one party. “It’s an amazing and unusual case,” says Allan Parker Jr., an attorney and president of the San Antonio-based Justice Foundation who represents McCorvey. On June 19, U.S. District Judge David Godbey rejected McCorvey’s Rule 60(b) motion for “relief from judgment” because it was not timely filed. Rule 60(b) allows district courts to grant relief to parties from judgments in “extraordinary” circumstances. But that rule also requires parties to request relief within a “reasonable” amount of time, and Godbey ruled that “thirty years is manifestly not a reasonable time.” Yet Parker says his client is advocating that the Fifth Circuit overturn Roe v. Wade based on evidence that didn’t exist at the time the Supreme Court issued its opinion. “We now have 30 years of evidence that abortion is psychologically damaging to women to a severe degree, where in 1973 abortion was rare and illegal in most places,” Parker says. “We’re asking that they [the Fifth Circuit] either vacate the opinion in Roe or send it back to the trial court for a full hearing,” Parker says. He believes McCorvey’s appeal will eventually wind up back at the U.S. Supreme Court. But as it stands, Parker will be presenting a one-sided argument to the Fifth Circuit on March 2 because Hill has not responded to McCorvey’s appeal. “Mr. Hill’s position in this lawsuit is he’s no longer the proper party to this issue. He’s a party in name only,” says Dolena Westergard, a Dallas assistant district attorney who represents Hill in the matter. Westergard says when McCorvey originally filed Roe v. Wade, Wade was defending a state law that prevented McCorvey from obtaining an abortion in Dallas County. Since that law no longer exists, Hill has no duty to defend it, Westergard says. Henry Wade died in 2001. “The posture of the district attorney is entirely different 30 years later,” Westergard says. “There is no law on the books that prohibits abortion in Texas, and there is no authority for him to prosecute.” On Feb. 18, a group of professors filed an amicus brief with the Fifth Circuit, asking the court to grant leave to allow them to argue the other side of the case. “Our clients’ concern is mainly that the rules of civil procedure not be misused and the courts not be misused,” says David Schenck, a partner in Dallas’ Hughes & Luce who represents more than 20 Texas law school professors who are intervening in their personal capacity. “And somebody needs to defend the district court’s judgment, which was clearly correct.” Alex Albright, a University of Texas School of Law professor who teaches Texas civil procedure, joined in the amicus brief. She says it would be in the Fifth Circuit’s best interest to have both sides of the case developed during oral argument. “The law professors’ point in this case is this is not an abortion issue, it’s a finality-of-judgment issue,” Albright says. Taking up Roe v. Wade 31 years later with its original litigants is not the proper way to change America’s laws allowing abortion, she says. “It may be over time that the interpretation of the Constitution changes,” Albright says. “But [those changes] need to be done with a new case or controversy.” Sarah Weddington, who represented McCorvey and a class of women seeking legal abortions in Texas in 1973, says she’s surprised that the Fifth Circuit agreed to hear oral argument in the case all these years later. “As the winning attorney in Roe v. Wade it is shocking to see an attempt to retry that case 31 years later, especially when there is no standing and no justiciable issue,” says Weddington, who no longer practices law, but still speaks around the country about the case. Notes Weddington, “This one is destined to become a test question on various law school exams because it’s so unusual and, some might say, weird.” John Council is a reporter with Texas Lawyer, a Recorder affiliate based in Houston.

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