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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, September 15, 2004

Judge Edith Jones Attacks Roe

[Update: Edward Lazarus adds some useful commentary on this subject here.]

Norma McCorvey ("Jane Roe") failed in her attempt to re-open Roe v. Wade over thirty years after the abortion decision was handed down. The appeals court (Fifth Circuit, one of the most conservative, and known for its individual rights view of the Second Amendment) via Judge Edith Jones (Reagan appointee, on Bush41's short list for the Supreme Court) relied on the principle of mootness. Texas law has changed, it now upholds the right to abortion, so McCorvey cannot defend a law that no longer exists.

The attempt itself obviously had little chance of success, though in a few rare cases, the Supreme Court did allow the method used to re-examine settled law. Why it would work here, however, is unclear. The Casey decision, which is really what controls abortion law these days (references to Roe notwithstanding) reaffirmed the foundation of the opinion in 1992, if anything strengthening it. A few years ago, Casey was clearly upheld when the Supreme Court examined a state partial birth abortion law. What changed since 1992 or rather 2000?

Suffice to say, nothing. The basic principles that made Roe v. Wade correct in 1973 did not change at all either, though the author of the majority of McCorvey's case of all people attempted to say otherwise. Yes, Judge Edith Jones also concurred, and basically put forth an anti-abortion screed and rebuke of the Supreme Court for not re-examining the core backbone of Roe. Justice Scalia would be proud.

The tone of the concurrence is suggested right away when she quotes Justice White in saying that the original abortion decisions were an "exercise of raw judicial power." And, the emptiness of her reasoning also comes through. The original cases were class actions -- it can be accepted that there were continually women affected by the regulations at stake, even if Roe herself was not pregnant by the time the case reached the Supreme Court.

Compare this to McCorvey's thirty years after the fact attempt to revive a long repealed law. Finally, there is a way to submit the "facts" supplied. A state can pass anti-abortion legislation. Casey itself is an example of a successful case of a state passing such legislation, clearly clashing precedent notwithstanding. The Court eventually re-examined said precedent based on a new view of things.

What "evidence" did McCorvey offer that "goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child?" First, some women "have suffered long-term emotional damage and impaired relationships from their decision." Women who chose childbirth did as well. The same would apply to women who badly chosen their spouses. This is far from trivial -- the right to marry allows one to choose some truly bad characters, and many women for one reason or the other (partly because they are pregnant) did so. And, the horrible results can be shown in the domestic violence reports alone.

Second, it is claimed that many times, women do not get enough counseling. Casey specifically loosened Roe to underline that laws that require said counseling (including a 24 hour waiting period) are legitimate. This again suggests trying to overturn Roe is ridiculous, given abortion law has gone through significant changes since 1973. Anyway, the attempt is an almost bizarre case of a tossing out a right because some aspect of how it is carried out is ill advised. An example of overkill.

Next, "the sociological landscape surrounding unwed motherhood has changed dramatically." First off, the idea that no "longer does the unwed mother face social ostracism" suggests the naïveté the opinion wants the reader to have of real life. Likewise, the suggestion that now there are fully adequate social welfare programs to care for them, ignoring the current reality that the "end of welfare" and so forth makes the current era in some ways less sympathetic.

Also, it can be agreed that various things are better these days, but there still remains various reasons why the right is so important. Fears of being an unwed mother is surely not the only reason a woman might want to have an abortion, and it never was. The burdens on her body, life choices, and yes, the interests of others in her family and community, continue to be present. And, Casey reaffirmed this. What new facts are we supposed to be looking at here?

The same for medical knowledge on fetal development. We haven't learnt anything specifically new since 1992. The statement in a footnote quoting a suggestion that the unborn is "sensitive to pain from the time of conception" is not only amazing, it would also potentially outlaw various sorts of contraceptives. The complexities of fetal development have been long known, but abortion is still deemed an important option for women to have. Again, a lot has changed since 1972, and the courts have been aware of it. Any number of opinions upholding the right to choose an abortion belies the idea that they only exist because said facts are ignored or denied.

Judge Jones' answer to such facts is disdain. In her eyes, obviously, the Casey Court were "disinclined ever to reconsider the facts" (apparently using the myriad of briefs that discussed them for scrap) and "conclusionally" decided nothing really changed. Casey itself belies the fact, including its references to changes in maternal health and fetal viability.

Likewise, since Pennsylvania did "challenge the trimester ruling" successfully in Casey, Judge Jones' assumption otherwise is unfounded. Legislatures pass laws in the face of court decisions too often to accept her claim that it is hopeless to do so. They do not really need her help or her preaching that the courts are interfering in "social policy," and not only in this area. Her consistency in this concern for judicial restraint is probably somewhat dubious, if she follows the norm of other judicial conservatives.

Judge Jones' is no "dispassionate observer," and her little jeremiad is likely to only convince the already converted.