Last week The Kavanaugh Column paused to consider the numerous criticisms of Roe v. Wade penned by federal appeals court judges. There are 167 authorized federal circuit court judgeships, excluding the federal circuit, which does not hear abortion cases. These appellate judges act as the penultimate judicial authority in America, just one step short of the U.S. Supreme Court, and as such are charged with interpreting and applying judicial precedent. As we observed, however, an increasing number of these judges – perhaps over two dozen now – have openly questioned Roe.
We would be remiss if we didn’t also mention perhaps the most remarkable criticism ofRoe ever made – the one leveled by Jane Roe herself, a/k/a Norma McCorvey. Norma wrote two books. The first, I Am Roe: My Life, Roe v. Wade and Freedom of Choice, she wrote in 1994, shortly after her “coming out” as Jane Roe in the public eye. The book is a sometimes heartrending account of her life as a drifter and a drug and alcohol addict who lied about being raped in order to obtain an abortion. And while Norma’s ghostwriter probably channeled an abortion advocate in addition to his co-author – Norma’s personal story is interspersed with chapters that read like a Planned Parenthood briefer on “Safe and Legal Access to Abortion” – one discerns a strong sense of ambivalence about the procedure she made available on demand across the United States. She writes of the pregnancy that resulted in what she called “the Roe baby:”
There was a baby. No, not a baby. I couldn’t even bear to think of it as that. There was this thing growing inside of me, getting bigger every day, and I couldn’t push the terrible fact of it out of my mind. This wasn’t like the other times. I didn’t want to give birth to another unwanted child. I didn’t want to have to give up another child. I didn’t want a child to be born with me as its mother.
Norma never got the abortion. Somewhere, probably in the Dallas, Texas area, a 48-year-old adoptee is completely unaware that he or she was intended for destruction.
Norma herself underwent a tumultuous personal transformation shortly after she wrote her pro-abortion biography. A year later, in 1995, Operation Rescue moved into the office suite next to the abortion center where she worked. Norma thought she would be murdered (her house had been shot up late one night several years earlier), or her clinic bombed. Instead, Operation Rescue leader Flip Benham reached out to her and loved her into the Christian faith, and into a love for all of the life that God gives. She wrote a second book, Won by Love, telling of her personal journey.
Several years later, Norma asked the federal court in Texas to reconsider its decision in her case, Roe v. Wade. The effort failed, with the court citing the passage of time since the Roe decision. But one judge on the Fifth Circuit Court of Appeals, Edith Jones, took the opportunity to say this about Roe:
[I]f 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). 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.
Norma passed away last year, but she was grateful for the chance to set the record straight before she did.
