Lawsuit to Overturn Doe v. Bolton May be Heard by Friendly Judge

National   |   Steven Ertelt   |   Sep 30, 2003   |   9:00AM   |   WASHINGTON, DC

Lawsuit to Overturn Doe v. Bolton May be Heard by Friendly Judge

by Steven Ertelt Editor
September 30, 2003

Atlanta, GA ( — A lawsuit seeking to overturn a landmark Supreme Court decision that made abortion legal throughout pregnancy has wound up in the hands of a judge who may be likely to take the case seriously.

Both Norma McCorvey and Sandra Cano, the original plaintiffs in the seminal Roe v. Wade and Doe v. Bolton decisions that legalized abortion, are pro-life and want the decisions overturned.

The Justice Foundation, a pro-life law firm, helped Cano file a Rule 60 motion to overturn the Doe decision. Such a motion allows parties in a lawsuit to ask a court to overturn a decision if the facts of the suit have changed.

"I’m going back to court to right a wrong," said Cano. "Abortion has hurt millions of women and I regret my role."

Cano says the decision should be overturned because the courts at the time did not have evidence that abortion hurts women. Over 1,000 women have provided sworn statements for Doe’s Rule 60 motion. Each have provided medical or anecdotal evidence about how their abortion was detrimental.

Cano’s suit has been assigned to Judge J. Owen Forester in the federal district court in Atlanta.

In 1988, Judge Forester granted Cano’s request to unseal the court records in Doe v. Bolton. That, and the fact that he is a Reagan appointee known to be conservative, has lead attorney Allan Parker thinking the case may have a chance.

"That can be good," Allan Parker, head of the Justice Foundation, said referring to the news Forester has been assigned the case.

Georgia Attorney General Thurbert Baker filed a response objecting to Cano’s lawsuit. Baker says Cano waiting too long after the Doe ruling to file the Rule 60 motion.

However, Parker, who says the Supreme Court has overturned longer precedents, believes Baker’s response was filed one day after the filing deadline closed and he says the court may not accept it.

"We will continue to wait for the Judge Forester’s ruling on this case, Parker said. "The judge could assign the motion to a three-judge panel and hold a trial, or the
motion could be denied by the judge, as was the Roe v. Wade Rule 60 motion filed
in Dallas federal court in June."

McCorvey’s case is on appeal after a federal district court threw it out without hearing it.

She is upset that the court dismissed it only days after it was filed, saying the judge obviously never read the affidavits of women who regret their abortions and discuss how it has hurt them.

Parker’s firm filed an appeal with the 5th Circuit Federal Appeals Court in New Orleans in response and their brief on it is due on October 9.

The 5th Circuit will assign the case to a three-judge panel for review. Parker said he would appeal a decision to deny the motion to the Supreme Court.

The U.S. Supreme Court has reversed its own precedents using Rule 60(b)(5) of the Federal Rules of Civil Procedure, most recently in the 1997 decision of Agostini v. Felton.

In that case, the high court used a post-judgment motion by a party to reverse two of its own 12-year-old precedents. The courts have reversed precedents by as long as 41 years, according to Parker.

Related web sites:
The Justice Foundation’s Operation Outcry –