ABORTING ROE: JANE ROE QUESTIONS THE VIABILITY OF ROE V. WADE

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I. INTRODUCTION

The Edith Jones Project is:

(a) A group of seven anonymous ACLU attorneys working to establish sufficient evidence to impeach Fifth Circuit Judge Edith H. Jones;

(b) A super-secret vast right-wing conspiracy to nominate Fifth Circuit Judge Edith H. Jones to the United States Supreme Court;

(c) A Maine-based all-female band specializing in modern big band jazz; or

(d) All of the above.

Before the silent late-night phone calls and death threats come rolling in from covert operatives who believe they have been exposed, let me make it clear that I can neither confirm nor deny whether the answer is (a), (b), or (d). I can confirm that the only publicly known Edith Jones Project advertises itself as having "86% less testosterone than the average big band . . . 200% of the swing."1 The curiously named "EJP" pays homage to several Edith Joneses "worthy of note." Included are Edith Jones Wharton, the first woman to win a Pulitzer Prize, and Fifth Circuit Court of Appeals Judge Edith H. Jones. Though the ladies of the EJP probably do not share Judge Jones's judicial philosophy, they pay her the compliment of being "one tough cookie." Judge Jones is one tough cookie, indeed, and her concurring Fifth Circuit opinion in McCorvey v. Hill further testifies to this truth.

McCorvey v. Hill affirmed the denial of Norma McCorvey's motion for relief under Federal Rule of Civil Procedure 60(b) from a thirty-two year-old judgment in her favor.3 That may not seem unusual at first glance, but to fully understand the implications of this unique case, one has to know Ms. McCorvey's former pseudo-name: Jane Roe. Her original case was styled Roe v. Wade.4 For anyone living under a rock the last thirty-two years, Roe v. Wade was the Supreme Court decision that found the abortion right within the U.S. Constitution and held unconstitutional any substantive state restriction on access to abortion. Norma McCorvey, a.k.a. Jane Roe, now wants Roe v. Wade overturned.

A Fifth Circuit panel unanimously agreed that, regardless of the merits of McCorvey's Rule 60(b) motion, McCorvey had presented no live case or controversy.5 Accordingly, her case was moot and her appeal was dismissed.6 The decision was rendered September 17, 2004 and was easy to miss amid the growing media circus surrounding the presidential election. Moreover, it was the result commentators on both sides of the abortion debate expected.7 Few gave the Rule 60(b) motion much of a chance to succeed. Accordingly, the decision slipped by largely unnoticed.

What should not have slipped by was Judge Edith H. Jones's remarkable concurrence in McCorvey. Despite having dutifully crafted the panel opinion, Judge Jones felt compelled to write a strikingly candid concurrence. The subject matter of her concurrence gives us some clue about her motivations. Excepting Justice White's dissent in Doe v. Bolton8 it is difficult to find a stronger call (at least in the Federal Reporter) for the reassessment of Roe v. Wade and its critical factual premises. Such candid and forthright assessments are rare from judges who are already on the Supreme Court bench, and even rarer from those who are not.9

Judge Jones believed her concurrence was necessary because "the serious and substantial evidence [Ms. McCorvey] offered could have generated an important debate over the factual premises that underlay Roe."10 These "factual premises" form nothing less than the basis for Roe's two critical determinations: (1) that constitutional privacy rights encompass the right to abort, and (2) that the unborn fetus merits no legal protection sufficient to justify any significant restriction on abortion rights." Furthermore, Judge Jones also believed that the judicial means used to lodge the abortion right within the Constitution has made it immune from reassessment by legislative or even judicial means, even in the light of these significant changed factual assumptions. …