United States Court of Appeals
September 14, 2004
Charles R. Fulbruge III
REVISED SEPTEMBER 17, 2004
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NORMA McCORVEY, FORMERLY KNOWN AS JANE ROE,
BILL HILL, DALLAS COUNTY DISTRICT ATTORNEY,
Appeal from the United States District Court
For the Northern District of Texas
Before JONES, WIENER, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This case arises from the district court's denial of McCorvey's
motion for relief from judgment pursuant to Fed. Rule Civ. Proc.
60(b). For the reasons set forth below, we dismiss.
EDITH H. JONES, Circuit Judge, concurring:
I agree that Ms. McCorvey's Rule 60(b) case is now moot. A
judicial decision in her favor cannot turn back Texas's legislative
clock to reinstate the laws, no longer effective, that formerly
It is ironic that the doctrine of mootness bars further
litigation of this case. Mootness confines the judicial branch to
its appropriate constitutional role of deciding actual, live cases
or controversies. Yet this case was born in an exception to
mootness  and
brought forth, instead of a confined decision, an "exercise of raw
judicial power." Doe v. Bolton, 410 U.S. 179, 222; 93
S. Ct. 762, 763, 35 L.Ed.2d 739 (White, J., dissenting) (1973).
Even more ironic is that although mootness dictates that Ms.
McCorvey has no "live" legal controversy, the serious and
substantial evidence she offered could have generated an important
debate over factual premises that underlay Roe.
McCorvey presented evidence that goes to the heart of the
balance Roe struck between the choice of a mother and
the life of her unborn child. First, there are about a thousand
affidavits of women who have had abortions and claim to have
emotional damage and impaired relationships from their decision.
 Studies by
scientists, offered by McCorvey, suggest that women may be affected
emotionally and physically for years afterward and may be more
prone to engage in high-risk, self-destructive conduct as a result
of having had abortions.  Second, Roe's assumption that
the decision to abort a baby will be made in close consultation
with a woman's private physician is called into question by
affidavits from workers at abortion clinics, where most abortions
are now performed. According to the affidavits, women are often
herded through their procedures with little or no medical or
emotional counseling.  Third, McCorvey contends that the
sociological landscape surrounding unwed motherhood has changed
dramatically since Roe was decided. No longer does the
unwed mother face social ostracism, and government programs offer
medical care, social services, and even, through "Baby Moses" laws
in over three-quarters of the states, the option of leaving a
newborn directly in the care of the state until it can be adopted.
neonatal and medical science, summarized by McCorvey, now
graphically portrays, as science was unable to do 31 years ago, how
a baby develops sensitivity to external stimuli and to pain
earlier than was then believed.  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
This is not to say whether McCorvey would prevail on the merits
of persuading the Supreme Court to reconsider the facts that
motivated its decision in Roe.  But the problem inherent in
the Court's decision to constitutionalize abortion policy is that,
unless it creates another exception to the mootness doctrine, the
Court will never be able to examine its factual assumptions on a
record made in court. Legislatures will not pass laws that
challenge the trimester ruling adopted in Roe (and
retooled as the "undue burden" test in Casey;
see Casey, 505 U.S. at 872-78, 112 S. Ct.
at 2817-21). No "live" controversy will arise concerning this
framework. Consequently, I cannot conceive of any judicial forum in
which McCorvey's evidence could be aired.
At the same time, because the Court's rulings have rendered
basic abortion policy beyond the power of our legislative
bodies, the arms of representative government may not
meaningfully debate McCorvey's evidence. 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. 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.
Hard and social science will of course progress even though the
Supreme Court averts its eyes. It takes no expert prognosticator to
know that research on women's mental and physical health following
abortion will yield an eventual medical consensus, and neonatal
science will push the frontiers of fetal "viability" ever closer to
the date of conception. One may fervently hope that the Court will
someday acknowledge such developments and re-evaluate
Roe and Casey accordingly. 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
See Roe v. Wade , 410 U.S. 113, 125; 93
S. Ct. 705, 713; 35 L.Ed.2d 147 (1973) ("Pregnancy provides a
classic justification for a conclusion of nonmootness. It truly
could be 'capable of repetition, yet evading review'.")
 R. at
15-1410, Affidavits of More Than One Thousand Post-Abortive
See R. at 1669-1718, Affidavit of David Reardon, Ph.D.
(reporting on clinical and scientific findings demonstrating that
abortion is linked to emotional, physical, and psychological
problems in women and criticizing the studies relied on by the
Roe Court). See also C. A.
Barnard, The Long-Term Psychosocial Effects of
Abortion (Portsmouth, NH: Institute for Pregnancy Loss,
1990); W. Franz & D. Reardon, Differential Impact of
Abortion on Adolescents and Adults, 27(105) Adolescence
161-72 (1992); M. Gissler, et al.,Suicides after pregnancy in
Finland: 1987-94: register linkage study, BMJ, 313:1431-4
(1996); B. Lask; J. Lydon, et al., Pregnancy Decision Making
as a Significant Life Event: A Commitment Approach, 71(1)
Journal of Personality and Social Psychology, 141-51 (1996); B.
Major & C. Cozzarelli, Psychosocial Predictors of
Adjustment to Abortion, 48(3) Journal of Social Issues,
48(3) 121-42 (1992); W. B. Miller, An Empirical Study of the
Psychological Antecedents and Consequences of Induced
Abortion, 48(3) Journal of Social Issues 67-93 (1992); W. B.
Miller, Testing a Model of the Psychological Consequences of
Abortion, The New Civil War: The Psychology, Culture, and Politics
of Abortion, (American Psychological Assoc., Linda J.
Beckman & S. Maria Harvey, eds. Washington, DC, 1998); H.
Söderberg, et al., Emotional distress following induced
abortion: A Study of incidence and determinants among abortees in
Malmö Sweden, 79 Eur. J. Obstet. Gynecol. Reprod. Biol.
173-78 (1998); H. P. Vaughan, Canonical Variates of Post
Abortion Syndrome (Portsmouth, NH: Institute for Pregnancy
Loss, 1990); Gail B. Williams, Induced Elective Abortion and
Pre-natal Grief (cited by Reardon).
See , e.g., R. at 1721-57, Affidavit of
David Reardon, Ph.D. (reporting, based on numerous studies,
investigations and interviews, that women visiting abortion clinics
receive little to no counseling (and what counseling is received is
heavily biased in favor of having an abortion), are rushed through
the process, and exposed - without sufficient warning - to health
risks ranging from unsanitary clinic conditions to physical and
psychological damage); R. at1668-1804, Exhibits to Affidavit of
David Reardon, Ph.D. (studies, full interviews, and other analysis
supporting conclusions); R. 4308-5188 Client Intake Records from
Pregnancy Care Centers (cataloging the emotional, physical, and
psychological symptoms felt by hundreds of women after having an
abortion who then sought post-abortion counseling); R. at 5189-96
Affidavit of Carol Everett (written testimony of a former abortion
clinic worker, reporting that, in her clinic, both abortion
counselors and physicians worked on commission and aggressively
followed a script to encourage prompt election of the procedure
-even when the patient was not pregnant; that physicians usually
performed 10 to 12 abortions per hour; that the clinic transported
women to hospitals secretly by car when complications arose (to
avoid bad publicity); and that she saw one woman die and 19 others
permanently maimed by abortion procedures); R. at 10, Affidavit of
Norma McCorvey (describing abortion facilities based upon her work
experience in clinics).
See ALA. CODE § 26-25-1 et seq. (2000);
ARIZ. REV. STAT. § 13-3623.01 (2001); ARK. CODE ANN. § 9-34-202
(MICHIE 2001); CAL. HEALTH & SAFETY CODE § 1255.7 (DEERING
2000); COLO. REV. STAT. § 19-3-304.5 (2000); CONN. GEN. STAT. §
17a-57 et seq. (2000); DEL. CODE ANN. tit. 16 § 907A
(2001); FLA. STAT. ANN. § 383.50 et seq.
(WEST 2000); GA. CODE ANN. § 19-10A-1 et
seq. (2002); IDAHO CODE § 39-8201 et seq.
(2001); § 325 ILL. COMP. STAT. 2/1 et seq. (WEST
2001); IND. CODE § 31-34-2.5-1 et seq. (MICHIE 2000);
IOWA CODE § 233.1 et seq. (2001); KAN. STAT. ANN. §
38-15,100 (2000); KY. REV. STAT. ANN. § 405.075 (2002); LA. CH.
CODE ART. 1151 (WEST 2000); ME. REV. STAT. ANN. tit. 17-A § 553
(2002); MD. CODE ANN. CTS. & JUD. PROC. § 5-641 (2002); MICH.
COMP. LAWS § 750.135 (2000); MINN. STAT. § 145.902 (2000); MISS.
CODE ANN. § 4315-201 et seq. (2001); MO. REV. STAT. §
210.950 (2002); Mont. Code Ann. § 40-6-401 et seq.
(2001); N.Y. PENAL § 260.03; PENAL § 260.15; and, SOC. SERV. §
372-g (2000); N.C. GEN. STAT. § 7B-500 (2001); N.D. CENT. CODE §
50-25.1-15 (2001); OHIO REV. CODE ANN. § 2151.3515 et
seq. (ANDERSON 2001); OKLA. STAT. tit. 10 § 7115.1 (2001);
OR. REV. STAT. § 418.017 (2001); PA. STAT. ANN. tit. 23 § 6501
et seq. (2002); R.I. GEN. LAWS § 23-13.1-1 et
seq. (2001); S.C. CODE ANN. § 20-7-85 (2000); S.D. CODIFIED
LAWS § 25-5A-27 et seq. (MICHIE 2001); TENN. CODE ANN.
§ 68-11-255 (2001); TEX. FAM. CODE ANN. § 262.301 et
seq. (WEST 1999); UTAH CODE ANN. § 62A-4a-801 et
seq. (2001); WASH. REV. CODE § 13.34.360 (2002); W. VA. CODE
§ 49-6E-1 et seq. (2000); WIS. STAT. ANN. § 49.195
(WEST 2001); WYO. STAT. ANN. § 14-11-101 et seq.
See R. 5197-5347 (submissions from numerous
individuals, each holding an MD or PhD, reporting that unborn
children are sensitive to pain from the time of conception, and
relying on peer-reviewed, scientific journals). See,
e.g., Mann et al.,Prevention of Allogeneic Fetal
Rejection by Tryptophan Catabolism, 281 Science 1191 (1998);
P.W. Mantyh, Inhibition of Hyperalgesia by Ablation of Lamina
I Spinal Neurons Expressing the Substance P Receptor, 278
Science 275 (1997)(cited by Dr. David Fu Chi Mark, Ph.D).
Indeed, the Court seems disinclined ever to reconsider the
facts, especially since in Casey, the Court's
determinative plurality opinion refuses to justify Roe
on its own terms and states conclusionally that "no change" in
regard to the viability of a fetus's life "has left
[Roe's] central holding obsolete." Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833, 860, 112 S. Ct. 2491, 2812, 120 L.Ed.2d 674 (plurality