5th Circuit judge blasts Supreme Court’s ruling in Roe v. Wade

Concurring opinion labels decision as "exercise of raw judicial power" despite dismissal of appeal by "Roe" to reverse the ruling

9/16/2004

NEW ORLEANS— Although a three-judge panel of the 5th Circuit Court of Appeals yesterday dismissed a case designed to overturn the U.S. Supreme Court’s decision in Roe v. Wade, Judge Edith Jones issued a concurring opinion that excoriated the 1973 decision legalizing abortion, calling it an "exercise of raw judicial power."

"The judge’s comments are on the mark," said Alliance Defense Fund Chief Counsel Benjamin Bull.  "Roe v. Wade is the perfect example of what can result from judicial activism—in this case, the deaths of millions of Americans."

In her concurring opinion, Jones wrote, "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."

Norma McCorvey, the "Jane Roe" from the Roe v. Wade decision who is now pro-life, filed the suit that was dismissed yesterday out of her belief that Roe was built upon false assumptions and both disregard and ignorance of crucial facts.  Her attorneys say they will likely appeal the case, Norma McCorvey v. Bill Hill, to the Supreme Court.  The 5th Circuit dismissed the case as moot, reasoning that her motion did not present a "live case or controversy" because Texas laws criminalizing abortion have been "repealed by implication."

Jones wrote in her concurring remarks that she lamented that mootness prevented McCorvey’s evidence in the case from being heard:  "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."

Jones concluded, "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."

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.