Posted on 02/20/2004 4:46:03 PM PST by SwinneySwitch
A federal appeals court is giving San Antonio lawyers a chance to argue that one of the most contentious cases in American legal history — the Roe vs. Wade decision legalizing abortion — should be reopened and reversed. The request is considered by some legal scholars a quixotic attempt to turn back the clock, but the 5th Circuit Court of Appeals is letting attorneys at the locally based Texas Justice Foundation make oral arguments in early March — an opportunity the court grants in about 1 in 10 cases.
Clayton Trotter, the foundation's general counsel, acknowledged the long odds but emphasized the group already has surprised skeptics who believed the motion never would get a hearing at the appellate court, which has the last word on most federal cases in Texas, Louisiana and Mississippi.
"Obviously, we're counting on God, we're counting on exceptional circumstances to occur," Trotter said. "But justice, and that's the word more than any other word, requires the court to consider the evidence."
A legal advocate for limited government, the Foundation represents Norma McCorvey, the Dallas woman whose challenge to Texas' abortion law under the pseudonym Jane Roe yielded the landmark 1973 U.S. Supreme Court decision.
McCorvey, now against legalized abortion, is arguing the controversial case should be redecided in light of new evidence, including technological changes and studies suggesting abortion may lead to breast cancer and suicide.
Besides Roe's about-face, this chapter of litigation also is unusual because McCorvey's request has no formal opposition.
Henry Wade, the legendary Dallas County district attorney who originally opposed McCorvey, is dead. Dallas' current district attorney, Bill Hill, has said he has no place in what now essentially is a civil dispute.
"His job as district attorney is to prosecute crime," said Dolena T. Westergard, the assistant district attorney assigned to the case. "There's no longer a crime on the books against abortion. There's nothing for him to enforce as there was 30 years ago when this case was originally brought."
Others, however, are ready to argue in his stead.
Twenty law professors from at least three Texas universities have asked to file briefs as amicus curiae, or friends of the court, defending the Dallas trial judge's decision to deny McCorvey's request because it came decades too late.
David J. Schenck, a Dallas lawyer who represents the professors, said he's not defending abortion rights so much as the principle that legal judgments shouldn't be overturned simply because a party disagrees with the result.
Schenck, a specialist in appellate law, said observers should not read any significance into the 5th Circuit's decision to hold oral arguments.
"Given that this is one of the most famous cases that has ever been decided, I think the 5th Circuit probably just wanted to make sure that every avenue in terms of (legal) process was provided," he said.
The court's decision, however, alarmed abortion-rights activists, some of whom had initially regarded McCorvey's request as little more than a frivolous publicity stunt.
The 5th Circuit is considered by some to be relatively hostile territory for abortion rights. The result could depend on which of the court's judges will sit on the panel that will decide the case, said Sara Love, legal director for NARAL Pro-Choice America.
"If there are conservative anti-choice activists on this panel, judges who want to overturn Roe v. Wade, then they might," she said.
David Dittfurth, a St. Mary's University law professor, said the Supreme Court has allowed litigants to reopen cases it decided years earlier, but none that affected so broad a public policy or altered such a landmark decision.
"It seems like a very odd challenge," he said.
--mrobbins@express-news.net
The Roe vs. Wade decision didn't come down until after her daughter was born. Still, the millions of aborted babies because of it has to weigh heavy on her heart.
Indeed so.
What is the difference between putting Ms Roe on a pedestal for having renounced abortion and putting Kadafi on a pedestal for saying he is sorry and paying the survivors of Lokerby millions of dollars each?
I am glad Ms Roe has had a change of heart. I am glad that Kadafi has had a change of heart. The world is a better place due to their changes of heart. The world has also suffered heavily by their actions before their change of heart. I do not plan to ask either of them to dinner at my table. I do not plan to make either of them poster boys for causes that I believe in.
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