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Dallas�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 5th U.S. Circuit 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. An ‘amazing case’ 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 5th 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,” said Allan E. Parker Jr., an attorney and president of the San Antonio-based Justice Foundation who represents McCorvey. On June 19, 2003, U.S. District Judge David C. Godbey rejected McCorvey’s Rule 60(b) motion for “relief from judgment” because it was not filed in a timely fashion. 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.” 30 years of evidence? Yet Parker said his client is advocating that the 5th 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 said. “We’re asking that [the 5th Circuit] either vacate the opinion in Roe or send it back to the trial court for a full hearing,” Parker said. 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 5th 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,” said Dolena Westergard, a Dallas assistant district attorney who represents Hill in the matter. Westergard said 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 said. Wade died in 2001. “The posture of the district attorney is entirely different 30 years later,” Westergard said. “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 5th 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,” said David Schenck, a partner in Dallas’ Hughes & Luce. Schenck 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,” Schenck said. Alex Albright, a University of Texas School of Law professor who teaches Texas civil procedure, joined in the amicus brief. She said it would be in the 5th 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 said.

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