McCorvey v. Hill

claims for failure to state a claim on which

relief granted. can be

III.

Accordingly, the judgment of the district

court is vacated and the case remanded to

the district court for proceedings not in-

consistent with opinion.

VACATEDAND REMANDED WITH

INSTRUCTIONS ^[*]

Norma McCORVEY, formerly known Roe,

as Jane Plaintiff-Appellant, HILL,

Bill County Dallas District

Attorney, Defendant-

Appellee.

No. 03-10711.

United States Court of Appeals,

Fifth Circuit. 14,

Sept. * complaint The 18, this case April was filed complaint amended granted. Accordingly, 2003, and a motion to grounds dismiss on the it hereby ordered that complaint Plaintiff's 12(b)(1) (lack Fed.R.Civ.P. subject mat- is dismissed.’’ jurisdiction) ter 12(b)(6)(failure to state a action) cause 30, May order of May 12, filed was ordinarily might 2003. An complaint amended well 21, mean 2003, was May filed the first motion to dismiss was and a motion to moot, dismiss under denied as Fed.R.Civ.P. and the second motion to 12(b)(6) (failure to action) state a cause of granted. dismiss was was That is by corroborated 23, May filed 2003. No action was taken on the entry in the 30, May docket of the first motion to dismiss. The second mo- stating that May order of 2003 denied tion to argued, however, dismiss was 30,May “as moot motion Donald & Patricia to 2003, and no reference in argument dismiss pursuant this action to Fed.R.Civ.P. made jurisdiction. The order dismissing 12(b)(1) 12(b)(6)." The order appealed the case was entered the district court that from is treated by parties both as an order day, same May stating: order dismissing the case for failure to state a cause “Defendant's motion dismiss is denied as action, and we so treat the same. moot, and Defendant's motion to dismiss Jr., Hulett, Jimmy D. Parker, E.

Allan Cassidy Schlueter, Kathleen Boston Linda Found., Anto- San Goodman, Justice Tex. Baxter, Jr., Offices Law P. TX, nio, Robert TX, Dallas, Rich- Jr., Baxter, P. Robert Found., Trotter, Justice Tex. Clayton ard Blakeney, Frances TX, Blanco, Sharon Boerne, Blakeney, F. of Sharon Office Law TX, Plaintiff-Appellant. for TX, Dallas, for Westergard, Tutt Dolena Defendant-Appellee. AZ, Tuseon, for Tex. Joyce, J.

Lawrence Educ. Life Life for Americans Black Network, Curiae. Amici Resource OR, Sheridan, for Mansell, E. Melanie Curiae. Amicus Ripplinger, WIENER, and JONES, Before Judges. PRADO, Circuit Judge: JONES, Circuit H. EDITH court’s district from arises case This relief for McCorvey’s motion denial Civ. Rule to Fed. pursuant judgment from forth 60(b). reasons For the Proc. below, dismiss. we

BACKGROUND 60(b) mo- Rule McCorvey filed Norma she which judgment from relief tion revisit court district to have sought Wade, in Roe decision Court’s Supreme L.Ed.2d S.Ct. pro- then identity McCorvey, (1973). ap- named Roe,” was as “Jane tected denied court district in Roe. pellant it concluding that after motion time reasonable within filed was not entered.1 judgment final after process would record, the decisional argument in oral dispensed with We Fed. argument. by oral aided significantly be arguments legal the facts because case R.App. 34(a)(2). P. briefs in the presented adequately DISCUSSION another action determined under court, three-judge single that a dis We review the court’s denial of judge, trict court acting alone after the relief under-Rule for abuse of discre 2281, repeal §of properly could entertain tion.' See Halicki v. Louisiana Casino subsequent and decide modified remedial Cruises, Inc., (5th 465, 151 470 F.3d Cir. orders. The instant context is no differ Reg’l Physician Flowers v. S. A single ent: judge district court can de (5th Servs., Inc., 798, 286 800 F.3d Cir. questions cide relating threshold 2002). The of district court’s denial 60(b) McCorvey’s Rule though moticmeven evidentiary subject hearing is also to abuse underlying judgment the originally of discretion review. See Wichita Falls by three-judge tried a court under the v. Corp., Assocs. Banc One 978 F.2d Office See, § White, former 2281. e.g., v. Bond (5th 915, Cir.1992). 918 1397, 1400-01 (5th Cir.1975). F.2d 508 (1) McCorvey: On appeal, asserts that improperly the court refused district 60(b) B. Rule (2) court; three-judge convene a chal- McCorvey argues that the district court lenges the ruling district court’s on her abused its in rejecting discretion her Rule 60(b) (3) motion; Rule and contends that 60(b) judgment motion for relief from as evidentiary she was entitled to an hearing untimely. question A necessarily anteced- 60(b) on her Rule motion. We address claim, ent to substantive how- each in turn. issue ever, is presented whether jus- she has a or controversy A. ticiable case Three-Judge pursuant Panel Article III of the Constitution. We are proceeded v. Wade before a independent under an obligation to exam- three-judge empaneled pur district court jurisdictional ine this question. § suant to 28 U.S.C. 2281. See 28 U.S.C. § 2281 There § 28 U.S.C. are two 2284 conceivable for bases con (controlling cluding composition procedure McCorvey the and present does not a courts). three-judge of live case controversy—lack district Before or standing its repeal,2 required 2281 a three-judge mootness. As the Supreme dis Court ex plained Earth, trict court to hear Friends determine cases the Inc. v. injunctions involving against (TOC), Laidlaw the enforce Environmental Services Inc., ment 167, 180, of state on 693, 704, statutes based allegations unconstitutionality. (2000), 145 Corpus v. L.Ed.2d standing Es 610 telle, (5th 68, Cir.1977). related, 551 F.2d 70 mootness distinct, but con McCorvey cepts. asserts single pretermit that the We question the judge, 60(b) court standing who if clearly ruled we find a Rule case moot. motion, See, authority. e.g., acted without Regents Nomi v. We dis Univ. Minn., agree. (8th Cir.1993). 332, 5 F.3d 334

Although original action was tried The mootness doctrine “ensures that the court, a three-judge district litigant’s Rule interest in the outcome continues motion filed by McCorvey in 2003 throughout was not to exist the life of the lawsuit properly matter for three-judge court. ... including pendency appeal.” Louisiana, In United (2d States v. 9 v. F.3d Cook Colgate, 992 F.2d Cir. (5th 1159, 1171 Cir.1993), 1993) ruled, this court (citing United States Parole Comm’n 94-391, Aug. 12, 1976, 2. 90 Stat. L. Pub. Currently, 388, 395, implication. repealed 100 S.Ct. been Geraghty,

v. U.S. (1980)) (other in a regulates abortion number Texas L.Ed.2d omitted); King, Rocky example, comprehensive For ways. see also citations (contro- Cir.1990) (5th availability regulations governs civil 900 F.2d throughout for minors. See versy must remain “live” abortions Tex. Fam. (2000). is the fatal §§ Mootness also litigation process). 33.002-011 Texas McCorvey. procedures of regulates practices for issue through clinics its Public Health a matter is moot general, “In Safety Code. See & Tex. Health Safe- presented if purposes III the issues Article ty 245.001-022; §§ see also Women’s Code parties lack a longer no or the are live Bell, v. Northwest Houston Med. Center of in interest the outcome.” legally cognizable (5th Cir.2001) (dis- 411, 414-16 248 F.3d 606, Glickman, 156 F.3d 619 v. Sierra Club portions of the Texas cussing various (5th Cir.1998). the consti regarding Suits Reporting Facility License and Abortion tutionality of statutes become moot once Act). Furthermore, regulates Texas repealed. See the statute is Diffenderfer availability of abortions. See state-funded Church, 412, 414- 404 U.S. Baptist v. Cent. (2002); 25 Tex. Admin. see 29.1121 574, 575-76, 15, 30 L.Ed.2d 567 92 S.Ct. Tex., v. Low Income Women also Bell (1972); Fed’n Adver. Indus. see also (Tex.2002). 253, 95 256 S.W.3d Executives, City Chicago, Inc. 326 v. (7th Cir.2003) (“[W]e, 924, along F.3d 930 regulatory cannot provisions These issue, to address the with all the circuits pur that provisions harmonized with be Supreme prece interpreted have Court There is no port to criminalize abortion. repeal that of a support the rule dent laws; way to enforce both sets in plaintiffs moots contested ordinance regulations are intended to form a current that junction request, absent evidence an addendum comprehensive scheme—not already has reenacted the City plans to or struck down in to the criminal statutes substantially or simi challenged law one Weeks, in As the court stated Roe. Connick, lar.”); F.Supp. v. 733 Weeks case, clearly is incon strikingly similar “it (E.D.La.1990).3 1036, 1037 that abor provide in one statute sistent guidelines if law, permissible tions are Texas statutes be Under provide in that abor implication. followed and another or repealed expressly Lake, 392, criminally prohibited.” 733 tions are v. 163 Tex. 356 S.W.2d Gordon Thus, (1962). stat because the 138, F.Supp. that at 1038. The Texas statutes 139 (former in unconstitutional Roe have utes declared Penal Code criminalized abortion 1196) motion is 1192, 1193, 1191, repealed, been Articles 1194 have, least, moot.4 at issue at and were above, adopted substantially any has not exception to moot- case. Texas As

3. noted statute, evidence, be- there a reasonable similar nor is is or a exists where there ness rule statutory believe, plans provi- to reenact the lief that it legitimate that the state will reason to down in Roe. substantially sions struck or one that is reenact statute City Mesquite v. Aladdin's similar. See 1070, 283, 289, Castle, did resolve the case The district court S.Ct. 455 U.S. Rather, 1075, grounds. on mootness Northeastern 71 L.Ed.2d 152 30-year delay "McCorvey’s Contractors court held that Chapter Associated Gen. Florida Jacksonville, 656, 662, great magnitude that motion of such City 508 U.S. v. 2297, (1993). due a reasonable time was not made within 124 L.Ed.2d S.Ct. Essentially, the length alone.” time exception apply instant does not to the This effective, Evidentiary Hearing formerly C. criminalized abor- tion. Finally, the district court did not It ironic that the doctrine of mootness denying McCorvey’s abuse its discretion in bars litigation further of this case. Moot- request evidentiary for an hearing. See judicial ness confines the branch to its Arabia, Kingdom Moran Saudi appropriate deciding constitutional role of (denial (5th Cir.1994) F.3d of evi- actual, live or cases controversies. Yet dentiary hearing affirmed where court had this case born in an exception to moot- written sufficient evidence to make its de forth, brought ness1 and instead of a con- cision). evidentiary An hearing would decision, judicial fined an “exercise of raw purpose have useful served no aid Bolton, power.” 179, 222, Roe v. analysis questions court’s of the threshold 35 L.Ed.2d 147 which, presented, explained, pre we as (White, J., dissenting). Even more ironic cluded the McCorvey sought. relief although is that mootness dictates Ms.

McCorvey has no “live” legal controversy, CONCLUSION the serious and substantial evidence she offered could have generated important an reasons, For these rather than those debate over premises factual that underlay court, by appeal articulated the district the Roe. from the district court’s denial of McCor- McCorvey presented goes evidence that 60(b) vey’s Rule motion for relief from to the heart of the balance Roe struck judgment is DISMISSED. between the choice of a mother and the life of First, child. unborn there are JONES, EDITH H. Judge, Circuit about a thousand of affidavits women who concurring: have had abortions and claim to have suf 60(b) I agree McCorvey’s that Ms. Rule long-term fered damage emotional and im judicial case is now moot. A in decision paired relationships from their decision.2 her favor cannot turn back legisla- Texas’s scientists, by Studies offered McCor laws, tive clock to longer vey, reinstate the no suggest that women be affected tions.”). 30-year delay, court concluded that a Accordingly, the district court erred circumstances, regardless long initially determining of the is too as in 30-year delay that the 60(b)(5) a disagree. matter of law. We examining Rule was "unreasonable” without the (b)(6) and require do not and particular the motion for relief facts circumstances of this within, hold, judgment brought from be a case. The district limited court did in the alter- Instead, native, period provisions 30-year delay of time. that the these re was "unreason- quire only under the that the motion "be made able” "facts and circumstances” within a of However, 60(b). the case. we need not time[.]” reasonable Therefore, reach that Fed.R.Civ.P. issue, require which would a substantive "[w]hat constitutes cri- reasonable claims, tique of light time in depends under Rule of our partic on the grounds. resolution of the matter question.” on mootness ular facts of case the in Fed. Land Bros., Cupples Bank St. Louis v. 889 F.2d (8th Cir.1989); Wade, 113, 125, Wyle, See Roe v. United States v. (9th 705, 713, ("What Cir.1989) F.2d ("Pregnancy 35 L.Ed.2d 147 consti provides depends justification tutes a reasonable a classic time for a conclu- the facts case.”) (citation of each quotation truly 'capa- sion nonmootness. It and omit could be ted); Co., Inc., repetition, review’.”) (cita- yet ble Virginia evading Holland v. Lee omitted). (W.D.Va.1999)("[T]here F.R.D. tions is no period timely distinguishing time from un absolute, 15-1410, timely motions outside of the one- 2. atR. Affidavits of More Than One year 60(b)(1)-(3) time frame for Rule mo- Thousand Post-Abortive Women. Third, MeCorvey counseling.4 emotional after years for physically emotionally and landscape sociological in the engage that to contends prone may more be and ward has re as a motherhood conduct surrounding unwed self-destructive high-risk, Second, decid had abortions.3 Roe having dramatically since changed sult to abort decision that assumption Roe’s mother unwed does longer No ed. consultation close in made be baby will pro ostracism, government and face social is called physician private a woman’s with services, care, social offer medical grams at workers from by affidavits into question laws “Baby Moses” even, through and are abortions most clinics, where abortion states, op three-quarters over affida to According performed. now directly in leaving newborn tion their through herded vits, are often women adopted.5 be it can until state of the care or no medical or little with procedures interviews, studies, and investigations ous 1669-1718, David Affidavit atR. 3. See receive clinics visiting abortion women sci- clinical Reardon, (reporting on Ph.D. counseling is (and counseling what to no demonstrating little findings entific having favor of heavily biased emotional, psychologi- received physical, linked process, through the abortion), criticizing the rushed women problems in cal warning Court). also sufficient exposed —to relied on studies —without unsanitary clinic Psychosocial ranging from Barnard, Long-Term risks health C.A. dam- (Portsmouth, psychological Insti- NH: physical Abortion conditions Effects & Loss, 1668-1804, Franz Affidavit W. Exhibits Pregnancy age); at tute interviews, Abortion Impact (studies, Reardon, Reardon, full Ph.D. D. David Differential conclusions); Adults, 27(105) Adoles- supporting and analysis Adolescents on and other al., Gissler, Sui- et (1992); from M. Records Intake 161-72 Client cence 4308-5188 R. 1987-94: Finland: (cataloging in the emo- pregnancy Centers cides Care Pregnancy after BMJ, 313:1431-4 study, linkage symptoms register tional, psychological and physical, al., Pregnancy Lask; Lydon, et having J. (1996); B. after women of by hundreds felt Event: Significant as a Making coun- sought post-abortion Life Decision who then abortion 71(1) Journal Approach, Ever- of Carol A Commitment Affidavit seling); at 5189-96 141-51 Psychology, Social Personality and abortion testimony former of a (written ett Cozzarelli, Psychoso- clinic, Major that, & C. (1996); B. worker, reporting clinic 48(3) Abortion, to Adjustment physicians Predictors cial and counselors abortion both (1992); Issues, 48(3) 121-42 of Social fol- aggressively Journal and on commission worked Psy- Study the Miller, Empirical An prompt W.B. election encourage script to lowed Consequences chological Antecedents patient the when procedure —even Is- Abortion, 48(3) of Social Journal usually per- Induced physicians that pregnant; Miller, Testing (1992); W.B. hour; 67-93 sues that per abortions to 12 formed Consequences Psychological secretly Model hospitals women to transported clinic Psycholo- " The Abortion, War: Civil The New (to avoid arose complications by car when Abortion, (Ameri- Culture, Politics gy, one woman saw she and that publicity); bad Assoc., J. Beckman Linda Psychological can maimed permanently 19 others die DC, Washington, Harvey, eds. S. Maria & Affidavit atR. procedures); abortion al., dis- Emotional Soderberg, et 1998); H. facili- (describing abortion MeCorvey Norma Study A abortion: following induced of in tress clin- experience in work upon her based ties among abortees determinants incidence ics). Gynecol. Sweden, J. Obstet. 79 Eur. Malmo Vaughan, (1998); H.P. 173-78 Reprod. Biol. (2000); Ariz. seq. § et 26-25-1 5. Ala.Code Syndrome Post Abortion Variates Canonical (2001); Ark.Code § 13-3623.01 Ann. Rev.Stat. Pregnancy Institute (Portsmouth, NH: 2001); & Safe § 9-34-202 Cal. Health (Michie Williams, Induced Loss, 1990); B. Gail 2000); § 1255.7 (Deering Colo.Rev. ty (cited by Pre-natal Elective Abortion Grief (2000); Conn. § 19-3-304.5 Gen.Stat. Stat. Reardon). tit. 16 (2000); Del.Code seq. et Ann. § 17a-57 seq. § et 383.50 (2001); § 907A Ann. 1721-57, Stat. of David Fla. See, Affidavit e.g., R. at seq. et § 2000); 19-10A-1 Ann. (West numer- Reardon, based Ga.Code (reporting, Ph.D. Finally, neonatal and medical science, sum- tooled as the “undue burden” test Ca marized McCorvey, now graphically sey; see Casey, 872-78, 505 U.S. at portrays, as science was unable to do 31 2817-21). 5.Ct. at No “live” controversy years ago, how baby develops sensitivity will arise concerning this framework. to external stimuli pain and to much earli- Consequently, I cannot any conceive of than er was then sum, judicial believed.6 In if forum in which McCorvey’s evi courts were to delve into the facts underly- dence could be aired. ing Roe’s balancing scheme with present- At the time, same because the Court’s day knowledge, they might conclude that rulings have rendered basic abortion policy the woman’s “choice” is far more risky and beyond the power of our legislative bodies, beneficial,

less and the child’s sentience far the arms of representative government more advanced, than the Roe Court knew. may not meaningfully debate

This is not say evidence. perverse whether McCorvey result of the would prevail Court’s having on the merits of determined persuading through consti- the Supreme adjudication tutional Court to reconsider the facts fundamental so- cial policy, motivated which its decision affects in Roe.7 over a But million problem women and unborn inherent in year, babies each Court’s deci sion facts no longer constitutionalize matter. This policy is a peculiar that, outcome for a unless it Court creates so another exception committed to “life” that it struggles doctrine, mootness particu- with the the Court will nev lar facts of er dozens of be able to death penalty examine its factual cases assump each year. tions on a record made in court. Legisla tures will not pass laws that challenge the Hard and social science will of course trimester (and ruling adopted in Roe re progress even though the Supreme Court seq. (2001); 39-8201 et §49.195 (West § Idaho Code 2001); Wyo. Stat. Ann. Ann. seq. 2001); et Comp. 2/1 § (West III. Stat. seq. 2003). et 14-11-101 (Michie seq. 31-34-2.5-1 et (Michie Ind.Code (2001); seq. 233.1 et § Iowa 6. (submissions Kan. Stat. 5197-5347 from numer- 38-15,100 (2000); Ky.Rev.Stat. § Ann. individuals, ous Ann. holding PhD, each an MD or § (2002); 405.075 La. Ch.Code reporting that unborn children are sensitive art. (West 2000); Me.Rev.Stat. Ann. (2002); Md.Code Ann. 17-A§ to pain from the tit. conception, time of 5-641 § Cts. & Jud. Proc. relying peer-reviewed, on scientific journals). (2002); (2000); 750.135 Comp. See, e.g., § Mich. Laws al., Mann et Prevention Allogeneic (2000); 145.902 § Minn.Stat. Rejection by Fetal Miss.Code Ann. Tryptophan Catabolism, 281 § seq. (2001); 43-15-201 et (1998); Science 1191 Mo.Rev.Stat. Mantyh, P.W. Inhibi- § (2002); 210.950 § Mont.Code Ann. 40-6- tion Hyperalgesia by Ablation Lamina I (2001); seq. 401 et 260.03; § N.Y. Penal Spinal Neurons Expressing the Substance P Penal 260.15; and, § § Soc. 372-g (2000); N.C. Receptor, Serv. (1997)(cited 278 Science 275 by Dr. § (2001); 7B-500 N.D. Cent.Code Gen.Stat. Mark, Ph.D). David Fu Chi § (2001); 50-25.1-15 Ohio Rev.Code Ann. § 2151.3515 seq. et 2001); Okla. (Anderson Indeed, the Court seems disinclined ever to § tit. 10 (2001); 7115.1 Stat. facts, reconsider the Or.Rev.Stat. especially since in Casey, (2001); § 418.017 Pa. Stat. Ann. tit. §23 6501 the Court’s determinative plurality opinion re- seq. (2002); et R.I. §23-13.1-1 et Gen. Laws fuses justify Roe on its own terms and (2001); seq. § (2000); 20-7-85 S.C.Code states conclusionally that Ann. change" "no in re- § S.D. Codified seq. 25-5A-27 et gard to the viability of a fetus’s life "has left (Michie Laws § (2001); 68-11-255 Tenn.Code Ann. [Roe’s] holding central obsolete.” Planned § seq. 262.301 et Tex. Fam.Code (West Ann. Parenthood Southeastern Pennsylvania v. 1999); Utah § seq. 62A-4a-801 et Casey, Code Ann. (2001); § (2002); 13.34.360 Wash. 120 L.Ed.2d 674 Rev.Code (plurality opin- W. Va.Code seq. 49-6E-1 et ion). Wis. Stat. Texas, Defendant- County, Bexar prog- expert no It takes eyes. its averts Appellant-Cross-Appellee. wom- research know nosticator following health physical mental en’s No. 03-51119. con- medical an eventual yield will abortion Appeals, Court United States push will science sensus, neonatal Fifth Circuit. closer to ever “viability” fetal frontiers fervently One conception. the date 17, 2004. Sept. someday acknowl- will the Court hope re-evaluate developments such edge That accordingly. Casey decisionmaking constitutional

Court’s willful position in a nation our

leaves knowledge should evolving

blindness observer dispassionate any

trouble decisions, but about

only which areas other a number

about realm into steps unhesitatingly

Court of constitu- guise under policy social adjudication.

tional Farias; RODRIGUEZ; G. Jose J.

Sergio C. Te Montelongo; Ruben M.

Doroteo Agui George Aragon;

jada; Mauricio Troy Ramirez; R.

lar; Marcario Lopez; Patterson

Hitchings; Diane Pacheco; Olivares; Yolanda

Mark Gipprich; Pacheco; Richard

Frank Lopez, Plain Vasquez; Steve

Grace

tiffs-Appellees-Cross-Appellants, TEXAS, COUNTY,

BEXAR Defendants, al.,

et

Case Details

Case Name: McCorvey v. Hill

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 20, 2004

Citation: 385 F.3d 846

Docket Number: 03-10711

Court Abbreviation: 5th Cir.