Lawsuit Headed to Supreme Court to Overturn Key Doe Abortion Decision

National   |   Steven Ertelt   |   Aug 8, 2006   |   9:00AM   |   WASHINGTON, DC

Lawsuit Headed to Supreme Court to Overturn Key Doe Abortion Decision Email this article
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by Steven Ertelt Editor
August 8, 2006

Washington, DC ( — A lawsuit seeking to overturn a landmark Supreme Court decision that made abortion legal throughout pregnancy is headed to the nation’s high court.

Sandra Cano, the "Mary Doe" of the Doe v. Bolton decision, which entrenched Roe v. Wade by declaring abortions should be allowed to protect a woman’s health and that health could be any reason at all, wants the high court to overturn the decision.

Attorneys for an Atlanta woman filed papers in the case on Monday and they also suggest that the Supreme Court take a new look at Roe v. Wade as well and consider overturning the pro-abortion precedent.

The lawsuit is similar to one Norma McCorvey filed seeking to reverse Roe itself and it will likely face dim prospects as the high court denied McCorvey’s appeal last February.

The Justice Foundation, a Texas based pro-life law firm, represented McCorvey and represents Cano in her case.

According to lead Justice Foundation attorney Allan Parker, "significant changes in the factual conditions surrounding abortion" make it so the facts of the cases have changed and the court should re-examine its decisions.

He says new information the court didn’t have at the time shows abortion hurts women.

That’s evidenced by "the sworn testimony of women harmed by abortion; medical articles and studies since 1973 documenting abortion injuries; and, sworn evidence that abortion clinics in fact do not provide the normal doctor-patient relationship anticipated by Roe v. Wade and Doe v. Bolton."

Over 1,000 women have provided sworn statements for the lawsuit saying they regret their abortions or were hurt physically or emotionally from it.

"Significant changes also occurred in legal conditions, including changes in the law of 46 states that have enacted ‘Baby Moses’ laws which transfer the burden of unwanted child care to society, and this Court’s Federalism jurisprudence restoring more autonomy to the states," Parker added.

Like the McCorvey case, the Cano lawsuit relies on a federal court rule as the basis for reopening the decades-old case.

The rule allows a court to re-examine its decision if new evidence has been found, or "it is no longer equitable" for the judgment to remain in force.

The 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.

It also used the rule in Aguilar v. Felton in 1985.

Cano’s case comes to the high court after the Eleventh Circuit Court of Appeals ruled in January that lower courts could not overturn Roe v. Wade or Doe v. Bolton and that it was a decision only the Supreme Court could reverse.

Mike Johnson, senior legal counsel for the Alliance Defense Fund, also commented on the case and compared it to the McCorvey lawsuit.

"In both cases, you have the original plaintiffs, who have had a change of heart in the matter," Johnson told Family News in Focus. "They are now petitioning the court to reopen their case and re-examine the rulings."

Cano most recently commented on the situation in a 2005 Senate committee hearing.

"Using my name and life, Doe v. Bolton falsely created the health exception that led to abortion on demand and partial-birth abortion," Cano told lawmakers.

"How it got there is still pretty much a mystery to me. I only sought legal assistance to get a divorce from my husband and to get my children from foster care," she explained. "I was very vulnerable, poor and pregnant with my fourth child, but abortion never crossed my mind."

"I did not seek an abortion nor do I believe in abortion," Cano added. "Yet my name and life are now forever linked with the slaughter of 40 to 50 million babies."

The case is Cano v. Baker, docket 06-162.

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