It would be nice to think that the death Saturday of Norma McCorvey will bring some peace to her soul. She certainly lacked for it during her 69 years on this orb. “A Dickensian nightmare” is how the New York Times described her early years as the “unwanted child of a broken home, a ninth-grade dropout who was raped repeatedly by a relative, and a homeless runaway and thief consigned to reform school. She was married at 16, divorced and left pregnant three times by different men.”
Yet the woman who entered the history books as Jane Roe never had an abortion. She was in her third pregnancy when she sued the district attorney of Dallas County, Henry Wade, for the right to an abortion. She was used by lawyers who were looking for a client to make a case for an abortion right. As the courts wrestled with the legal abstractions, McCorvey carried her own child to term and gave it up for adoption. Her child was two years old by the time the Nine ruled.
McCorvey herself eventually realized the ghastliness of the case. She emerged from several years on the barricades of the campaign for abortion rights and became a religious Christian. Then, in 2004, she filed a federal lawsuit pleading that Roe v. Wade be overturned. That case, known as McCorvey v. Hill, was ended by riders of the United States Appeals Fifth Circuit. The opinion, written by Judge Edith Jones, is, in our view, one of the most powerful of all the documents in the abortion cases.
The Supreme Court, after all, was all about what rights lurk — or don’t, in the view of dissenting justices Byron White and Wm. Rehnquist — in the shadows and penumbras of the Constitution. It was McCorvey v. Hill that confronted the world with the constitutional consequences. Judge Jones agreed with a lower court that McCorvey’s case had long since become 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,” she wrote.
Judge Jones reckoned it was “ironic” that the “doctrine of mootness” — which confines our judicial branch to actual cases and controversies — barred further litigation. Roe itself, after all, was first and foremost an exception to mootness, in that McCorvey’s baby was born and walking by the time the Nine started pulling their chins on whether the baby could have been taken in the womb. By the time the Nine sat, there was no case or controversy, which is why, Jones noted, Justice White had called Roe an exercise in “raw judicial power.”
“Even more ironic,” Judge Jones wrote, was evidence McCorvey offered that “could have generated an important debate over factual premises that underlay Roe.” She referred to a thousand affidavits of women “who have had abortions and claim to have suffered long-term emotional damage and impaired relationships.” And evidence questioning the “assumption that the decision to abort a baby will be made in close consultation with a woman’s private physician.” And medical advances lowering the age of viability.
McCorvey, Judge Jones noted, also contended that the “sociologial landscape” on “unwed motherhood” had changed. As had neonatal and medical science, which, Judge Jones wrote, was able to portray “how a baby develops sensitivity to external stimuli and to pain” much earlier than when Roe was decided. Judge Jones did not suggest that McCorvey would have prevailed at the Supreme Court 31 years after Roe. She did suggest that Roe had created a “perverse result.”
And one, we’d add, worthy of Kafka. Unless the Nine were to create, as Judge Jones put it, “another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court.” Judge Jones said she could not “conceive of any judicial forum in which McCorvey’s evidence could be aired.” Nor could the representative arms of government debate it. Our nation, Judge Jones warned, had been left in “a position of willful blindness.” No wonder McCorvey turned to the light of Sinai.