Moon: Roe redux could hand abortion debate back to states

Posted: Sunday, June 22, 2003

   A filing made last week in Dallas before the U.S. District Court bears the innocuous title ''Rule 60 Motion for Relief from Judgment.'' The court rejected the motion, but the attorney who filed it has vowed to push for a reversal. If he is successful, it could eventually end up in the U.S. Supreme Court and set the stage for one of the fiercest legal battles in American history. And that's just for starters.




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In 1973 the Supreme Court ruled on a case called Roe v. Wade, which resulted in the overturning of all state laws prohibiting abortion. The Roe in question was actually one Norma McCorvey, who was single and pregnant - probably not a good thing to be in Texas during the early 1970s. At that time abortions were illegal in Texas except in cases where the life of the mother was endangered, so McCorvey filed a class action lawsuit to have the state law declared unconstitutional.

   McCorvey's case (she was referred to as ''Jane Roe'' in court documents to protect her identity) wound up in the Supreme Court, which did indeed find the Texas abortion law unconstitutional - and thus by extension voided all other similar state laws proscribing abortion. However McCorvey has had a drastic change of heart and now seeks overturn the ruling that was delivered in her favor 30 years ago.

   The Roe v. Wade redux calls for the original ruling to be vacated because there has been a ''significant change in both the factual and legal landscape'' during the past three decades. In 1973 the court arbitrarily created a ''trimester framework,'' declaring that states may protect ''fetal life'' only around the third trimester of pregnancy since at that point the fetus can potentially survive outside of the womb (although in the same breath the justices admitted that they were ''not in a position to speculate'' as to when life begins, and never did clearly define the exact moment of ''viability'' in their ruling). McCorvey contends that advances in medical technology have allowed premature babies as early as 21 weeks old to survive, and that ongoing advances in neo-natal medicine will continue to push back the viability limit and render the ''trimester framework'' moot.

   McCorvey's filing also cites recent Supreme Court cases that have broadened the interest of states in promoting ''potential life,'' and challenge the notion of abortion as a fundamental constitutional right. This has always been the most problematic area of the original Roe v. Wade decision - although there is nary a word in the constitution regarding abortion, the court divined a constitutional right to terminate pregnancy: Justice William O. Douglas wrote that ''zones of privacy'' are created through guarantees in the Bill of Rights that ''have penumbras, formed by emanations from those guarantees.''

   At this point you, gentle reader, are probably wondering what the heck a penumbra is, let alone what kind of emanations form them. This the kind of thing that causes conservatives to cry out for judges that are ''strict constructionists,'' i.e., ones who think the Constitution actually means what it says, as opposed to judges who concoct emanating penumbras that lesser mortals are unable to perceive in the Constitution.

   The Supreme Court has increasingly taken note of the shaky foundation that the 1973 decision rested on, noting in a 1992 case that ''our decisions after Roe cast doubt upon the meaning and reach of its holding.'' But even if Norma McCorvey succeeds in having Roe v. Wade overturned, it doesn't mean that abortion will be outlawed. Instead, we will return to where we were prior to 1973, with the states writing abortion laws. It is highly unlikely that any state will ban abortion outright (especially in the first trimester), for the culture of the nation is not what it was 30 years ago. Today abortion is one of the most commonly practiced surgical procedures in America, and it does not carry the intense social stigma that it once did.

   What is more likely is that the 50 state legislatures will be forced to define ''personhood'' and specify the exact point in time at which the fetus ceases being a mass of cells carrying the legal status of an internal organ and becomes a person with guaranteed constitutional rights. This means 50 knockdown, drag-out fights between the various pro-choice/pro-life factions, with the state legislatures eventually doing what they are supposed to do: reaching a compromise and codifying community values into legal statutes.

   Just as the Founding Fathers intended - with nary a hint of a penumbra anywhere.





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