Appeals Court: Woman in Roe v. Wade Abortion Decision Can’t Overturn It

National   |   Steven Ertelt   |   Sep 20, 2004   |   9:00AM   |   WASHINGTON, DC

Appeals Court: Woman in Roe v. Wade Abortion Decision Can’t Overturn It Email this article
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by Steven Ertelt Editor
September 20, 2004

New Orleans, LA ( — A three judge appeals court panel last week dismissed a lawsuit filed by the woman in the original Roe v. Wade Supreme Court case that legalized abortion.

Norma McCorvey, who is now pro-life and regrets her role in the original case, is hoping to overturn the high court’s decision saying new information the court did not have shows how abortion hurts women physically and emotionally.

The judges on the U.S. Court of Appeals for the Fifth Circuit — one of the more conservative appellate courts in the country — ruled the case should not be reopened.

"Suits regarding the constitutionality of statutes become moot once the statute is repealed," Circuit Judge Edith H. Jones wrote in the opinion.

Judge Jones also wrote that the original statute banning abortions was overturned by implication since the state now has other abortion laws.

While Jones agreed with the court’s majority, she also wrote a separate concurring opinion calling the case an "exercise of raw judicial power."

Allan Parker, director of the Justice Foundation, a pro-life law firm that is helping McCorvey with the lawsuit, says the decision will be appealed.

"We’ve always known that this case will be ultimately decided by the Supreme Court," he said. "We will be successful at the Supreme Court level."

In response to the decision, McCorvey said she was "not discouraged."

"Judge Jones said a lot of good things," McCorvey told the Houston Chronicle. "We’re learning who our friends in the courts are."

"This doesn’t alter the fact that children are still being killed, and women are being crippled mentally and emotionally," McCorvey added.

Some leading pro-life attorneys have questioned the wisdom of the case — saying that pro-life judges must be added to the Supreme Court before Roe can be overturned. The nation’s high court currently backs legalized abortion by a 6-3 majority and partial-birth abortions by a 5-4 majority.

Edward Lazarus, an attorney who teaches law in Los Angeles, says he is not surprised by the decision.

"McCorvey’s suit to re-open Roe is plainly an act of desperation, geared to generate some momentum toward another run at erasing the constitutional right to abortion," Lazarus explained.

"But that kind of attempt will prove futile — unless, of course, dramatic changes happen on the Supreme Court," Lazarus said.

Abortion advocates agree.

"Whoever is elected in November, because of their control of these lifetime appointments, is going to have an enormous impact. This case points that out," Wheat, a spokeswoman for the Texas Abortion and Reproductive Rights Action League, told the Chronicle.

McCorvey originally filed suit in 2003 in a federal district court in Texas to reopen and reconsider Roe v. Wade.