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DALLAS — As expected, on Sept. 14 the Fifth Circuit U.S. Court of Appeals rejected the opportunity to re-open litigation in 1973′s Roe v. Wade abortion decision, basing its ruling on procedural grounds. But the judge who wrote the opinion couldn’t resist taking a shot at Roe v. Wade’s unusual procedural history — referring to the U.S. Supreme Court’s landmark opinion as an “exercise of raw judicial power.” In 2003, Norma McCorvey — the plaintiff better known as Jane Roe — filed a motion in McCorvey v. Hill in the U.S. District Court in Dallas requesting that the court vacate Roe v. Wade. Bill Hill is the elected successor to the late Dallas County District Attorney Henry Wade, who in 1973 was charged with enforcing a Texas law that made abortions illegal in the state. Wade 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 uncommon position of hearing an argument in a highly controversial case from the point of view of only one party. Hill’s lawyers say he is not the proper party in the case because there no longer is a state abortion law for him to defend. U.S. District Judge David Godbey ruled last year that McCorvey’s Rule 60(b) motion for “relief from judgment” was not timely filed because “30 years is manifestly not a reasonable time,” and Fifth Circuit Judge Edith Jones agreed, finding that McCorvey’s motion was moot. Jones was joined in the opinion by Judges Jacques Wiener and Edward Prado. However, in a unique twist in the appeal, Jones wrote a concurrence to her own opinion, using it to rail against Roe. In her concurrence, Jones was largely sympathetic to much of the evidence that McCorvey presented explaining why Roe should be reconsidered. This evidence included 1,000 affidavits from women who’ve had abortions and claim they have suffered long-term emotional damage. It also offered studies by scientists finding that women can be damaged physically and emotionally by having an abortion. “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,” wrote Jones in her concurrence. Jones added that she was not saying that McCorvey would prevail on the merits of persuading the Supreme Court to reconsider Roe. But she wrote that unless the Supreme Court creates another exception to the mootness doctrine, it will never be able to examine its factual assumptions on a record made in court. “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,” Jones wrote. “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.” In her final commentary, Jones chided the high court for forever denying the legislative and judicial branches the ability to re-open one of the most controversial decisions of the 20th century. “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,” Jones wrote. David Schenck, a partner and appellate attorney in Dallas’ Hughes & Luce who represented 19 law school professors who filed an amicus brief with the Fifth Circuit in the case, says Jones made the right call in deciding not to consider McCorvey on procedural grounds. But the part of the opinion that will receive the most attention is Jones’ concurrence, says Schenck, whose clients in their amicus brief urged the court not to consider such an important case by only hearing an argument from one litigant. “It’s an interesting concurrence, obviously very carefully thought out,” Schenck says. “Her concurring opinion isn’t based on any procedural concerns and obviously there were serious procedural concerns with this case going forward. And Judge Jones is fully capable of differentiating between procedural problems and other issues in this case.” Even though the Fifth Circuit rejected the appeal, Allan Parker Jr., president of the Texas Justice Foundation, takes solace in Jones’ concurrence. “I believe that will help us get [ certiorari] from the U.S. Supreme Court,” Parker says. “I also believe that there are other judges on the Fifth Circuit who will agree with her, so we will probably be filing for en banc consideration.” Parker argues that the U.S. Supreme Court decided Roe based on a moot issue, as McCorvey had already given birth to her baby by the time the high court decided the case in 1973. “I won’t concede that it’s fundamental procedural rules” that are preventing McCorvey’s motion from being heard, Parker says. “Mootness rules are flexible rules of jurisprudence as the original Roe v. Wade case demonstrates.” John Council is a reporter with Texas Lawyer, a Recorder affiliate based in Dallas.

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