Bias and Fallacy in Roe
Norma McCorvey's suit to overturn Roe v. Wade was recently dismissed by the courts (Norma McCorvey is the real name of Jane Roe). The full text of the decision can be found by clicking here. However, I think the concurring opinion by Judge Edith Jones is especially worth reading as it points out a ridiculous fallacy and bias in Roe that presently prevents new scientific evidence about abortion from having any legal bearing (despite the fact that it demonstrates the evidence taken into account at the time of the Roe decision was severely incomplete). The following is the text of Judge Edith Jones concurring opinion:(Note: in terms of law, moot means "Without legal significance, through having been previously decided or settled," according to Dictionary.com)
EDITH H. JONES, Circuit Judge, concurring:
I agree that Ms. McCorvey’s Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas’s legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.
It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an “exercise of raw judicial power.” Doe v. Bolton, 410 U.S. 179, 222; 93 S. Ct. 762, 763, 35 L.Ed.2d 739 (White, J., dissenting) (1973). Even more ironic is that although mootness dictates that Ms. McCorvey has no “live” legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.
McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision.
Studies by scientists, offered by McCorvey, suggest 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.* Second, Roe’s assumption that the decision to abort a baby will be made in close consultation with a woman’s private physician is called into question by affidavits
from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.** Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through “Baby Moses” laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted. Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.*** In sum, if courts were to delve into the facts underlying Roe’s balancing scheme with present-day knowledge, they might conclude that the woman’s “choice” is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.
This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court’s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the “undue burden” test in Casey; see Casey, 505 U.S. at 872-78, 112
S. Ct. at 2817-21). No “live” controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey’s evidence could be aired.
At the same time, because the Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey’s evidence. The perverse result of the Court’s
having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter. This is a peculiar outcome for a Court so committed to “life” that it struggles with the particular facts of dozens of death penalty cases each year.
Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women’s mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal “viability” ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court’s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.
* See R. at 1669-1718, Affidavit of David Reardon, Ph.D. (reporting on clinical and scientific findings demonstrating that abortion is linked to emotional, physical, and psychological problems in women and criticizing the studies relied on by the Roe Court). See also C. A. Barnard, The Long-Term Psychosocial Effects of Abortion (Portsmouth, NH: Institute for Pregnancy Loss, 1990); W. Franz & D. Reardon, Differential Impact of Abortion on Adolescents and Adults, 27(105) Adolescence 161-72 (1992); M. Gissler, et al., Suicides after pregnancy in Finland: 1987-94: register linkage study, BMJ, 313:1431-4 (1996); B. Lask; J. Lydon, et al., Pregnancy Decision Making as a Significant Life Event: A Commitment Approach, 71(1) Journal of Personality and Social Psychology, 141-51 (1996); B. Major & C. Cozzarelli, Psychosocial Predictors of Adjustment to Abortion, 48(3) Journal of Social Issues, 48(3) 121-42 (1992); W. B. Miller, An Empirical Study of the Psychological Antecedents and Consequences of Induced Abortion, 48(3) Journal of Social Issues 67-93 (1992); W. B. Miller, Testing a Model of the Psychological Consequences of Abortion, The New Civil War: The Psychology, Culture, and Politics of Abortion, (American Psychological Assoc., Linda J. Beckman & S. Maria Harvey, eds. Washington, DC, 1998); H. Söderberg, et al., Emotional distress following induced abortion: A Study of incidence and determinants among abortees in Malmö Sweden, 79 Eur. J. Obstet. Gynecol. Reprod. Biol. 173-78 (1998); H. P. Vaughan, Canonical Variates of Post Abortion Syndrome (Portsmouth, NH: Institute for Pregnancy Loss, 1990); Gail B. Williams, Induced Elective Abortion and Pre-natal Grief (cited by Reardon).
** See, e.g., R. at 1721-57, Affidavit of David Reardon, Ph.D. (reporting, based on numerous studies, investigations and interviews, that women visiting abortion clinics receive little to no counseling (and what counseling is received is heavily biased in favor of having an abortion), are rushed through the process, and exposed — without sufficient warning — to health risks ranging from unsanitary clinic conditions to physical and psychological damage); R. at 1668-1804, Exhibits to Affidavit of David Reardon, Ph.D. (studies, full interviews, and other analysis supporting conclusions); R. 4308-5188 Client Intake Records from Pregnancy Care Centers (cataloging the emotional, physical, and psychological symptoms felt by hundreds of women after having an abortion who then sought post-abortion counseling); R. at 5189-96 Affidavit of Carol Everett (written testimony of a former abortion clinic worker, reporting that, in her clinic, both abortion counselors and physicians worked on commission and aggressively followed a script to encourage prompt election of the procedure — even when the patient was not pregnant; that physicians usually performed 10 to 12 abortions per hour; that the clinic transported women to hospitals secretly by car when complications arose (to avoid bad publicity); and that she saw one woman die and 19 others permanently maimed by abortion procedures); R. at 10, Affidavit of Norma McCorvey (describing abortion facilities based upon her work experience in clinics).
*** See R. 5197-5347 (submissions from numerous individuals, each holding an MD or PhD, reporting that unborn children are sensitive to pain from the time of conception, and relying on peer-reviewed, scientific journals). See, e.g., Mann et al., Prevention of Allogeneic Fetal Rejection by Tryptophan Catabolism, 281 Science 1191 (1998); P.W. Mantyh, Inhibition of Hyperalgesia by Ablation of Lamina I Spinal Neurons Expressing the Substance P Receptor, 278 Science 275 (1997)(cited by Dr. David Fu Chi Mark, Ph.D).
posted by ertandberni @ 3:44 PM
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