By PRISCILLA GREEAR, Staff Writer | Published August 4, 2005
Norma McCorvey and Sandra Cano, the women who were the plaintiffs in the 1973 Supreme Court decisions that legalized abortion virtually on demand, have filed a petition with the high court to set aside the decisions or at least order a new trial on the merits for reversal.
In February, accepting only 90 out of 9,000 possible cases up for review, the Supreme Court declined to review Roe v. Wade, the case where McCorvey was “Jane Roe.” Their decision was not based on the merits of the case, according to lead attorney Allan Parker Jr. of The Justice Foundation in San Antonio, Texas.
But as senators scrutinize Supreme Court nominee John Robert’s views on abortion, the Doe v. Bolton case where Cano was plaintiff “Mary Doe” is headed to the court. If a conservative Supreme Court justice is appointed to succeed retiring Justice Sandra Day O’Connor, Parker, a former law professor at St. Mary’s University in San Antonio, believes this case is more likely to be reopened. He is optimistic that one day “people are going to wake up, and it will be overturned.”
“The man-bites-dog twist in this is that it is the winner, not the loser, who is looking to have the court’s decision reversed,” he noted.
Neither Cano nor McCorvey ever had the abortions at issue in their cases. The Roe decision threw out most state restrictions on abortion, while the Doe decision permitted abortions through all nine months of pregnancy.
“I was never told what an abortion would do,” said McCorvey at a recent press conference in Washington, D.C. “I’m glad I didn’t have an abortion. My baby is alive—somewhere.”
Cano, a Dallas, Ga., resident, said Doe v. Bolton “was based on deceit and fraud.”
“I have never had an abortion,” she added, voicing her sympathies with women who have had abortions: “They do not know which way to turn … They cannot undo the death of their baby.”
Cano said she never sought an abortion when she went to a Georgia Legal Aid attorney for help with a divorce in 1970, and believes the lawyer either had her unknowingly sign the court papers or she forged them to file the lawsuit in Atlanta. Pregnant with her fourth child and receiving no support from her husband, Cano faced family pressure to have an abortion, but she refused. She eventually left the state and had the child, who was adopted by another family.
Parker spoke to pro-life leaders of the Atlanta Archdiocese on July 19 at the Catholic Center on his work representing Cano and seeking the reversal of her case. He said the Doe v. Bolton brief is due in August at the Eleventh Circuit Court of Appeals in Atlanta, having been denied by the federal district court here.
The state then will have 60 days to file a brief by Oct. 1, after which attorneys will have two weeks to file a response to their brief. The court will then take several months to decide whether or not to hear oral arguments or to decide based on submitted briefs and is expected to decide by next spring whether to deny the motions or to have a trial held in Atlanta on abortion.
“That’s why we’re putting 5,000 pages of affidavits on record. If they deny a motion and we don’t get a trial, we have three months to appeal to the Supreme Court,” Parker said.
The legal strategy is a “Rule 60” motion based on the Federal Rules of Civil Procedure.
The strategy was used successfully in 1997 when the Supreme Court reversed itself in the Agostini v. Felton case. The reversal permitted religious schools to apply for federal Title I funds to offer remedial programs to low-income students.
Parker said decisions up to 41 years old have been overturned using the Rule 60 standards.
“The older a decision is, the more likely you’ll be able to get it overturned,” he said.
However, the strategy has failed in two other judicial forums. In June 2003, a Dallas, Texas, district court judge declined to reopen McCorvey’s case, saying her request was not made within “a reasonable time” after the Supreme Court decision.
“Whether or not the Supreme Court was infallible, its Roe decision was certainly final in this litigation,” U.S. District Judge David Godbey wrote in the ruling. “It is simply too late now, 30 years after the fact, for McCorvey to revisit that judgment.”
In 2004 an appeal to the Fifth U.S. Circuit Court of Appeals in New Orleans failed; the circuit handles cases from Texas, Mississippi and Louisiana. In February 2004 a three-judge panel of the court decided against conducting an open hearing in the case in favor of considering only the 5,347 pages of affidavits, and then in October the panel dismissed the petition. A petition for a full-court hearing was denied soon after.
Justice Foundation attorneys took hope in a concurring opinion by Judge Edith Jones, who expressed “fervent hope” the Supreme Court would consider developments since 1973 and re-evaluate Roe v. Wade.
Parker is counting on the high court considering those developments. He has collected over 1,000 affidavits from around the country of women testifying to the psychological damage they’ve experienced from abortion and saying they regret having had an abortion.
Since the psychological damage abortion causes is a debated subject, he urged more women who’ve had abortions and have experienced post-abortion healing, regardless of how long ago they had the procedure, to step forward and write affidavits about their emotional pain and suffering. They can be written anonymously but must be notarized. Women who haven’t had abortions can file friend of the court briefs.
He is also basing his argument on advances in medical technology since the early 1970s that show human life begins in the womb.
“In 1973 we didn’t know abortion hurts women,” Parker said, adding, “We now know when life begins.”
All states have more alternatives now to help women deal with unwanted pregnancies including laws that allow women to simply leave their newborn babies at hospitals and other designated places without any legal consequences and without having to deal with an adoption agency.
Parker urged parishes to allow women who’ve had abortions to speak on its destructiveness, encouraging other women to come forward when they’re ready and expose the lies that “abortion helps women” and that a baby is not being aborted.
“In the legal briefs we say it seems like a short-term solution but instead it has long- term consequences,” he said. If “parents hear stories about 30-year-olds being depressed and committing suicide, then they’re not going to be so quick to tell their daughters to get abortions.”
Mary Boyert, director of the archdiocesan Pro-Life Office, noted that those suffering following abortion must first get help to experience personal healing before they are ready to speak publicly. In the archdiocese, programs of post-abortion healing include Project Rachel and Post Abortion Treatment and Healing (PATH).
Activist Dianne Donaudy spoke of how she had an abortion as a mother of two children after getting divorced. It seemed like the easy solution, she said, but she struggled quietly with guilt and shame for years, trying to assuage it through charity work, keeping busy and being a good person. “The cocktail hour became very important.” She married the father, and for 25 years she never talked to him about it but finally became involved in a crisis pregnancy center Bible study and experienced healing.
She is now Georgia representative for Operation Outcry, an organization that grew out of the Justice Foundation’s efforts. It is building a network of state and regional leaders to encourage and train women and others to speak publicly, and to collect affidavits. She encouraged pro-life workers to not condemn or be judgmental, so as to not push those who’ve had abortions deeper into their private despair and sense of shame and guilt.
“It can be overturned … We have to work together and stand up and make it possible for women to come out and start speaking and tell their stories,” she said.
Operation Outcry international director Karen Bodle said she had had an abortion in college, thinking it was an easy solution, but “for me the consequences have been devastating.” She was hospitalized for psychological problems, she said, after learning the man she married didn’t want to have children. When she met Jesus she “began the process of looking at the truth of what I’d done … I didn’t need an abortion. I needed help to face the fact that my life would be different … That’s why pregnancy centers are so important,” she said. “There’s an army of women rising up sharing their stories in a simple way on a piece of paper … Every one of you can be vessels to share the message that women have been hurt by abortion and are sharing their stories.”
She believes many women who most ardently support abortion rights do so to justify to themselves that what they did was right.
Richard Clayton Trotter, general counsel for The Justice Foundation, spoke of the important alliance between Catholic and other pro-life Christians. “I thank God for the Catholic Church. The Catholic Church is the backbone of the pro-life movement in America. Without the Catholic Church we would not be able to do the things we do.” Parker said that Operation Outcry is planning an awareness fund-raiser on Jan. 19, 2006, in Atlanta to coincide with the anniversary of Roe v. Wade.
Whether or not the case is ever overturned, Boyert noted the value of revealing and discussing the very real psychological turmoil many women experience following abortion.
“No matter what happens, even if the courts strike it down, look at all the good coming from it,” she said. “It’s an opportunity to share and to learn from people and to reevaluate the horrible scourge on our land.”
In another pro-life development, Parker reported that U.S. Sen. Sam Brownback (R-Ks) held a hearing of the Senate Judiciary Committee’s Constitution, Civil and Property Rights subcommittee on June 23 examining the consequences of Roe v. Wade and Doe v. Bolton, the first in a series of hearings that will highlight the effect some of the court’s decisions have had on American life and government.
Cano and McCorvey testified on negative effects of the decisions, along with Teresa Collett, professor of law at the University of St. Thomas Law School in Minneapolis and M. Edward Whelan, president of the Ethics and Public Policy Center in Washington. Dr. Ken Edelin, associate dean of the Boston University School of Medicine, R. Alta Charo, professor of law and bioethics at the University of Wisconsin Law School, and Karen O’Connor, professor of government at American University, testified in support of Roe v. Wade.
“It was a historic day to have two plaintiffs testify before Congress that abortion was wrong and should be overturned,” Parker said.
Mark Pattison in Washington contributed to this article.
For information on Operation Outcry or to download an affidavit form, visit www.operationoutcry.org. For information on post-abortion healing call (404) 888-7821.