[This post originally appeared at Lean Left, a general-issues blog KTK also contributes to. The founders of Lean Left graciously allowed me to re-post it here to bring all my health-related posts into one place. Original posting: 9/14/2004]

Norma McCorvey, who was the original “Jane Roe” in the groundbreaking Roe v Wade case, famously became a conservative Christian and changed her mind about abortion rights about 10 years ago. She has since become a figurehead in anti-choice campaigns, and in the past few years has agreed to serve as plaintiff in an attempt to invalidate Roe entirely, arguing that “new research” (i.e., the standard anti-choice myths about “post-abortion syndrome”) was available, and as the original plaintiff in the case McCorvey had the right to present it.

There is a procedure for re-arguing cases on new evidence, but it requires that the case still be a “live controversy”. This case was previously dismissed in federal district court on the grounds that the 30-year time lapse was too great, and especially so under the particular circumstances of the case (in which the Supreme Court has repeatedly reasserted the basic holding, and a large body of law has grown up around it, not to mention that the plaintiff herself vocally supported the ruling for over 20 years before changing her mind).

The district court dismissal was upheld today by a 3-judge panel of the 5th Circuit Court of Appeals. The short, unanimous opinion was given on rather technical grounds having to do with whether the lower court’s hearing procedures were valid (what’s that? – they were appealing on a technical loophole in the law? – why, yes – it’s OK if it’s anti-abortion) and whether the case is still considered a “live controversy”. An odd aspect of the decision is that new arguments in Roe are now “moot” because the law prohibiting abortion has been overturned – by the Roe decision!. (It seems to me that, logically, the question whether that law is Constitutional or not is still “live” in any case challenging the decision overturning that law. It makes sense to me to say you can’t re-argue a case 30 years later, but it doesn’t make sense to say you can’t argue it because the original decision settled the matter – that’s the whole point of arguing it in the first place. But that’s a large part of the court’s actual decision. Proving once again that law is weird.)

At any rate, though, an obviously bogus attempt to turn back abortion rights has failed again, and it’s good to hear. The bad news is that the anti-choicers can request an en banc hearing (before the full 20-member Circuit Court); that request can be granted if a majority of the court’s members vote to do so. A lawyer I know claims that the 5th Circuit is “a pretty good court” – meaning it’s not likely to do something that stupid – but the federal appellate courts in general have been getting more and more conservative under Bush (the 5th Circuit is the home of the egregious racist Charles Pickering, appointed while Congress was out of session when the Senate refused to confirm him). We’ll have to see what happens. Both sides expect the question to eventually be appealed to the Supreme Court (where the likeliest outcome is that they would refuse to hear arguments and order the case dismissed – even if some on the Court are itching to overturn Roe, this case isn’t the best vehicle for it).

The strangest thing about the decision was the concurring opinion by Edith Jones, who states in her opening sentence that the case has no standing but then adds 5 pages of personal opinion clearly yearning for a chance to rule in McCorvey’s favor. Jones is a notorious extreme right-winger who is often named as a potential Bush Supreme Court appointee. In her opinion, she accepts at face value – without the slightest trace of skepticism, and without referring to any contrary evidence – the claims of the anti-choice faction 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”. She also offers a criticism of the Supreme Court for having made the Roe decision in the first place, essentially arguing that – because courts cannot revisit the 30-year-old Roe decision, and legislatures will not challenge it in statutory law because the Court has affirmed the original decision – the law is now so settled that it cannot be challenged even though it should be. This is an exceptionally weak argument (the law can be challenged by any legislator capable of writing a bill that is not offensive, unconstitutional, or simply risible on its face, and the factual “evidence” against abortion will be considered if there ever is any that isn’t false or made up). She claims that “the Court�s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge” – which seems rather absurd to anyone who’s witnessed an unending avalanche of restrictive laws, bogus factual claims, and arguments about fetal development, premature infant survival rates, and any other thing that can be dragged in. That not everything can be heard in court is hardly proof of a judicial conspiracy, especially when almost everything already has been. Jones’s outspoken hostility to Roe – and the expressly one-sided view she has of arguments over the issue – are why she must never get to a higher court. But for now, at least, reason prevails.