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VOL. 7, NO. 2Jan. 25, 2005

Why Roe Must Go: The Re-filing of Roe v. Wade 

By Virginia C. Armstrong, Ph.D.*, National Chairman

Norma McCorvey, the "Jane Roe" of Roe v. Wade in 1973 is now asking the U. S. Supreme Court to vacate the judgment which it rendered in her favor thirty-two years ago. At that time, the Supremes (7-2) declared abortion to be a constitutional right. McCorvey's action is not a typical assault on Roe as unassailable "precedent," an issue bitterly debated in current federal judicial nomination battles. The legal vehicle used by Norma McCorvey ("Jane Roe") to reach the U. S. Supreme Court, asking it to revoke the Court's 1973 judgment in her favor, is a "Rule 60 Motion."

  1. "Rule 60 Motion:"

    • Is provided for by Congress under the Federal Rules of Civil Procedure;

    • Permits a litigant to request the federal courts to "relieve" a party (i.e., Roe) from a final act of the courts (i.e., the Supreme Court's invalidating of the Texas abortion statute in 1973);

    • This relief should be granted by the Court when it is no longer fair or just that the Court's previous judgment continue to be applied;

  2. McCorvey's use of a Rule 60 motion is in line with the 1997 U. S. Supreme Court decision in Agostini v. Felton, where the Court granted a Rule 60 motion, reconsidering and reversing a previous ruling. In Agostini, an establishment of religion case, the courts ruled that it is proper to bring to the courts a prior judgment that can now be seen as "clearly erroneous" and productive of a "manifest injustice" due to a change in law or factual circumstances. McCorvey argues that both law and circumstances have now changed sufficiently to justify the Court's re-opening her case and overturning its 1973 decision.

  3. Norma McCorvey now contends that continuing to apply the 1973 Roe decisions is neither just nor equitable and would produce manifest injustice for a variety of reasons, including the following:

    • Factual changes;

      • Abundant, credible evidence proves that abortion is physically harmful to women;

      • Abundant, credible evidence proves that abortion is psychologically harmful to women;

      • Abortion is often the result of coercion exerted toward the woman and does not involve a normal doctor-patient relationship;

    • Legal changes:

      • The passage of "Baby Moses" laws in 46 states;

      • A renewed judicial concern for federalism justifying a returning to the states of the decision to allow or prohibit abortion.

The justice and equity which Norma McCorvey now seeks can be achieved only by judges' recognition of past judicial errors. As a top-ranking official in the British judicial system (in which our American law is moored) accurately asserted in1959, "If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling around them."

*Member of McCorvey's Legal Team and Media Advisory Committee; National Chairman, Eagle Forum's Court Watch; President, The Blackstone Institute. Ph. 325-673-3020; www.blackstoneinstitute.org. Dr. Armstrong is filing an amicus curiae brief with the Supreme Court supporting McCorvey's petition.

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