Amicus Curiae Brief — McCorvey v. Hill

(y)

No. 04-967 - ec

FEB - 8 2005

FE FICE OF THE Le j

In The SER |

Supreme Court of the Anited States

¢

NORMA McCORVEY,

FORMERLY KNOWN AS JANE ROE,

Petitioner,

V.

BILL HILL, Dallas County District Attorney,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF AMICUS CURIAE BRENDA

ALEXANDER IN SUPPORT OF PETITIONER

DAVID A. WEMHOFF, Esa.

105 E. Jefferson, Suite 400

South Bend, Indiana 46601

(574) 234-3900 (tel)

(574) 236-2839 (fax)

Counsel for Amicus Curiae

Brenda Alexander

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS |

Page

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INTEREST OF THE AMICUS CURIAE...............00000008 1

SUMMARY OF ARGUMENT. ......0..........ccccsssccseessseceeeee 1

I caiinnis sels es inslitsccntaniiieaiabaenaindiiegas datiihabbeian 3

I. COMPELLING REASONS EXIST FOR THE

EXERCISE OF JUDICIAL DISCRETION IN

GRANTING THE PETITION FOR WRIT OF

IIE Sasnshitedtesecnssiahiatintancaniniiahdtiiansbiianssiens 3

II. THE RULE 60(B) MOTION BY PETITIONER

IS NEITHER MOOT NOR UNTIMELY............ 5

A. The Doctrine of Mootness Is Inapplicable

to the Instant Case Since the Issues Giv-

ing Rise to the Case Have Not Disap-

peared and Any Court Decision Will Have

eI Me iiaiicsiiennsanahasnrcnncatadsacenecasinn 5

B. Circumstances Make Timely the Motion

Brought Under Rule 60(b)................:::ccc0e 6

Ill. PETITIONER'S MOTION PURSUANT TO

RULE 60(b)(5) AND 60(b)\(6) PRESENTS

MORE THAN SIGNIFICANT CHANGES IN

BOTH FACTUAL CONDITIONS AND THE

FERRE EOE RTS MT TOE TT CMTE NET I Le 9

A. The Conditions Under Rule 60(b)(5) Have

cashier eo 9

B. Sufficient Grounds Exist for the Applica-

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TABLE OF CONTENTS - Continued

Page

IV. CHANGES IN FEDERAL JURISPRUDENCE

HAVE CHANGED THE LEGAL BASIS OF

BRO, V.. TORRID «inencscsontnssinieaniadeaanaieiaaation 13

V. THE FACTUAL FOUNDATION OF ROE V.

WADE IS UNDERMINED AND TO ALLOW

ITS CONTINUED PROSPECTIVE APPLICA-

THON 85 UTS UES: s:.scouuncicseaiameaioesenine: 17

CONC LOTION ....+::x<ssnnsaasshanmsienicnaiiieaadanaelaalaniaiaas 20

TABLE OF AUTHORITIES

Page

CASES:

Adams v. Merrill Lynch Pierce Fenner & Smith, 888

i RC RA WEN A ere 12

Agostini v. Felton, 521 U.S. 203 (1997)... 9,10

Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98 (1954)........... 13

Brown v. Brannon, 399 F.Supp. 133 (M.D.N.C.

SIRE REET aN i SEO A EMG PSEA CTS PAPAIN 13

Cruzan v. Director, Mo. Dept. of Health, 497 U.S.

a cuaniiceaneeeseiiaaial 17

Gregory v. Ashcroft, 501 U.S. 452 (1991)... eee 14

Helvering v. Gerhardt, 304 U.S. 405 (1938).........00000.00000.. 15

Jones v. United States, 463 U.S. 354 (1983) ............... co. 16

Kansas v. Hendricks, 521 U.S. 346 (1997).................. 15, 16

Klapprott v. United States, 355 U.S. 601, 69 S.Ct.

REESE ART Re ON Coe Re OT A 12

Kleid v. Board of Education, 406 F.Supp. 902 (W.D

ERSTE ee ais ee Re ee RD 13

National Labor Relations Board v. Pittsburgh S. S.

Co., 340 U.S. 498, 71 S.Ct. 453 (1961) .................c.scccccs0e 4

Planned Parenthood of Southeastern Pa. v. Casey,

GSR RENO en ON aE 17, 18, 19

Printz v. United States, 521 U.S. 898, 117 S.Ct.

i: FY GMI EIEE WEIS © NIE Pi scosnnsasascchaceoucduncmesentinonacese 14

Rice v. Sioux City Memorial Park Cemetery, 349

REAR nea RA IN ERT IE 4

iv

TABLE OF AUTHORITIES — Continued

Page

Roe v. Wade, 410 U.S. 113 (19738)................ccccccreereeees passim

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

Se STE snsscciasesdidhiecisaiiabsiitlespasipeaidaialiagipeanaspainaninebdapetausniaies 9

Stenberg v. Carhart, 530 U.S. 914 (2000)............... seacceronse AM

Strama v. Peterson, 96 F.R.D. 198 (D.C. Ill. 1982) ............. 7

Tafflin v. Levitt, 493 U.S. 455 (1990) .0........c ee eeeseeeeeeeee 14

Texas v. White, 74 U.S. 700, 19 L.Ed. 227 (1868) ............. 14

United States v. McDonald, 86 F.R.D. 203 (D.C. IIl.

SIDED shnhntnnsdsibnnbuisctiininscédaeantcadicaeunteibininideblaiinsneeiminaéaciéadteds 12

XO Missouri v. City of Maryland Heights, 362 F.3d

Re EG SR ie cctiscalacidiecniapiigicierniclsteatpiindaceianietailatiants 13

Washington v. Glucksberg, 521 U.S. 702 (1997)............... 17

CONSTITUTION:

ee es MIE, Ti ieicecicsiindienesncesnorncibmenaaniaiamians 13

Se Ss I, BRUNO si secniinicinaacseiscscnsaieciespethbicbianiaiiita 16

RULES AND REGULATIONS:

Federal Rules of Civil Procedure Rule 60(b) ............. passim

US. Sepremen Coumrt Buhe 20... ncccccccccccscscsconsclascsscsasscsnns 3,4

OTHER SOURCES:

Theresa Burke and David C. Reardon, Forbidden

PERFOR: THOUS Fi icissatcciccstcisensmiinnitnaiinsiiansintetionsans 20

TABLE OF AUTHORITIES — Continued

Philip G. Ney, Emotional and Physical Effects of

Pregnancy Loss on the Woman and Her Family: A

Multi-Centered Study of Post-Abortion Syndrome

and Post-Abortion Survivor Syndrome, Post-

Abortion Aftermath (Sheed & Ward 1994) Mi-

amd TF. TG, CUE si cinicistiiccricricttiniii er

P. Ney, M.D., Relationship Between Abortion and

Child Abuse, Canada Journal of Psychiatry, vol.

IE. .xsicinenssenisnsrinnadsenadeiiihisniniiindaiisauiaaaimmclaiaae

David C. Reardon, Forgotten Fathers and Their

Unforgettable Children, The Post Abortion Re-

WENT GEG) PR BG certnisscneniticanstobianmiennsibidiiadaiumtinns

Vincent M. Rue, The Psychological Realities of

Induced Abortion, Post-Abortion Aftermath

(Sheed & Ward 1994) Michael T. Manion, editor.....

David C. Saffell and Harry Basehart, State and

Local Government: Politics and Public Policies

CHU OH; FID vncsiinincnintdetitatteaetiiie eS ce Ce.

Otis H. Stephens, Jr. and John M. Scheb II, Ameri-

can Constitutional Law (8rd ed. 2003).................06..

Thomas Strahan, Portraits of Post-Abortive Fathers

Devastated by the Abortion Experience, Associa-

tion for Interdisciplinary Research In Values and

Social Change Nov/Dec 1994.............cccceeeeeeeeeseeeseees

World Almanac and Book of Facts 2004 ............csss000008

Wright and Miller Section 2866 ...............::cccccccccseesssees

Page

1

INTEREST OF THE AMICUS CURIAE’

Amicus curiae, Brenda Alexander, is an individual

whose mother attempted to abort her through chemical

means. The abortion failed to end the life of Brenda

Alexander, but as a result, Brenda Alexander, suffered

emotional hurt, and the relationship with her mother was

strained. Since discovering the events before her birth,

Brenda Alexander is dedicated to ending abortion and

promoting respect for all human life. Brenda Alexander

submits this brief in support of Norma McCorvey, formerly

known as Jane Roe.

SUMMARY OF ARGUMENT

Since the decision by the United States Supreme

Court in Roe v. Wade, 410 U.S. 113 (1973) to extend the

right of privacy to a woman’s decision to terminate a

pregnancy, a number of factual and legal developments

‘ have occurred that would make the continued application

of that decision inequitable. Over the course of the last

thirty-two (32) years, the harm done to women, men,

families and society has mounted, yet the states have been

effectively denied the ability to exercise their power in

protecting the health and welfare of their residents. This

is largely due to the Roe v. Wade decision and those deci-

sions coming thereafter that have kent the states from

acting in the best interests of their citizens. The concur-

ring opinion of Judge Edith H. Jones in McCorvey v. Hill,

No. 03-10711, slip op., at 11-12 (5th Cir. Sep. 14, 2004) sets

forth this state of affairs: i

* Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

2

“In sum, if courts were to delve into the facts un-

derlying Roe’s balancing scheme with present-

day knowledge, they might conclude that the

woman’s ‘choice’ is far more risky and less benefi-

“At the same time, because the Court’s rulings

have rendered basic abortion policy beyond the

power of our legislative bodies, the arms of rep-

resentative government may not meaningfully

debate McCorvey’s evidence. The perverse result

of the Court’s having determined through consti-

tutional adjudication this fundamental social pol-

icy, which affects over a million women and

unborn babies each year, is that the facts no

longer matter... .

“One may fervently hope that the court will

someday acknowledge such developments and re-

evaluate Roe and Casey accordingly... .”

While the law continues to evolve in such a way as to

increasingly expand the responsibilities and powers of the

states in caring for the health of their citizens, for the

reasons set forth by Judge Jones above, they are prohib-

ited from doing so. There are more than 5,000 pages

documenting the harm, physical, emotional, and psycho-

logical, to women, and by implication, those around them,

brought by abortion. Expert opinions from health care

professionals clearly indicate the link between abortion

and a number of maladies that affect women immediately

after an abortion and throughout their lives.

The ramification of this situation is that the states are

unable to adequately protect their citizens by legislation

after being allowed a healthy discussion of the medical,

psychological, emotional, and familial harm of abortion.

This can only serve to negatively impact the public health

requiring greater expenditures of public and private funds

at a time when states and private firms are under severe

3

fiscal strain largely due to the rising health care costs and

increased demands for health care services. With the

number of abortions exceeding one million per year, the

impact of abortion on public health is substantial. The

Court should address the compelling issues raised by the

writ of certiorari as they are of great national importance.

ARGUMENT

This case provides the Court with an opportunity to

review a social policy that has serious, and long-lasting,

negative effects on women and hence society at large. The

issues raised by the motion filed pursuant to Rule 60(b) of

the Federal Rules of Civil Procedure present themselves at

a critical time, and these issues certainly are not moot.

The amount of evidence that has accumulated, and con-

tinues to accumulate, as to the deleterious nature of

abortion is astounding and worthy of serious review, yet

there has been no forum for addressing the policy implica-

tions. Federal jurisprudence has undergone major changes

since the decision in Roe v. Wade was handed down. The

power and authority of the States in caring for their citizens

has been given a greater recognition by the United States

Supreme Court over the course of the last thirty-two years

since the Roe v. Wade decision. This brief focuses on some of

the substantive issues that the lower courts did not reach by

virtue of their erroneous decisions not to hear the matter.

The Court should grant the petition for a writ of certiorari.

I. COMPELLING REASONS EXIST FOR THE

EXERCISE OF JUDICIAL DISCRETION IN

GRANTING THE PETITION FOR WRIT OF

CERTIORARI

Rule 10 of the Rules of Court of the Supreme Court of

the United States sets the standard for granting writs of

4

certiorari: “A petition for writ of certiorari will be granted

only for compelling reasons.” Among those compelling

reasons is included a decision by a “United States court of

appeal... [of] .. . an important question of federal law...

or has decided an important federal question in a way that

conflicts with relevant decisions of this Court.” S. Ct. Rule

10(c).

The cases examined by the Court are not to be hypo-

thetical, rhetorical, or academic exercises. In Rice v. Sioux

City Memorial Park Cemetery, 349 U.S. 70, 74, 75 S.Ct.

614 (1955), this Court explains that it squarely faces

issues of a constitutional nature to “reach to a problem

beyond the academic or the episodic. This is especially true

where the issues involved reach constitutional dimensions,

for then there comes into play regard for the Court’s duty

to avoid decision of constitutional issues unless avoidance

becomes evasion. . . .” Cases accepted on writs of certiorari

are those “... ‘involving principles the settlement of

which is of importance to the public, as distinguished from

that of the parties. . . .’” National Labor Relations Board v.

Pittsburgh S.S. Co., 340 U.S. 498, at 501, 71 S.Ct. 453

(1951).

The Rice case involved an action for damages concern-

ing a private cemetery’s refusal to permit burial of a non-

Caucasian. The National Labor Relations Board case

involved alleged unfair labor charges. Both cases met the

standards for granting a writ of certiorari because of the

actual or projected impact on many people. The Roe

Petition is no different. More than forty-five million

abortions have been had since the legalization of abortion,

and at the rate of more than one million per year, many

more men, women, and children will be effected. If one

were to consider that each conception involves a woman, a

man, and the child, then with forty-five million abortions

one could conclude more than one hundred thirty-five

5

million human beings have been directly involved with

abortion since state restrictions were lifted. At the rate of

one million abortions per year, at least three million more

human beings are involved annually. Up to one quarter of

all pregnancies end in abortion’ and abortion has become

the most common medical procedure performed on women.

The impact on so many is an impact on society at

large, and on the States in particular. With the evolving

notions of federalism that have been occurring in this

Court’s jurisprudence since the mid 1970s, almost imme-

diately after the Roe decision was handed down, constitu-

tional questions have arisen as to the extent and nature of

the Court’s discerned right to privacy in the area of abor-

tion. The resolution of these constitutional questions are of

a compelling, and very real, importance to the public, the

states, and the nation as a whole since abortion has

become such a frequent procedure.

II. THE RULE 60(b) MOTION BY PETITIONER IS

NEITHER MOOT NOR UNTIMELY

A. The Doctrine of Mootness Is Inapplicable to

the Instant Case Since the Issues Giving

Rise to the Case Have Not Disappeared and

Any Court Decision Will Have A Practical

Effect

“A case is moot if the issues that gave rise to it have

been resolved or have otherwise disappeared. Such a case

is apt to be dismissed because a court decision would have

* See The World Almanac and Book of Facts 2004 pp. 73, 77.

6

no practical effect.”* Some view the use of the mootness

doctrine as a “convenient ‘out’.”*

The issues that gave rise to Roe v. Wade remain.

Women are still becoming pregnant and are considering

their options. These issues have taken on new significance

with the changes in the judicial view of federalism since

the decision was rendered. As the increasingly obvious

deleterious effects of abortion continue to accrue and as a

high rate of abortions continue, a court decision will have

enormous practical effect. Denying the Petition, and the

Rule 60(b) motions, keeps a critical discussion of women’s

health in the dark. Granting the Petition and the Rule

60(b) motions allows for a discussion, and the development

of policy, to avert any more continued harm to women’s

health and society’s overall well-being.

Now is an important time to face the issues presented

by the Petition since matters of public health, health costs,

and declining social welfare systems ultimately affecting

all citizens are implicated. The decision will affect things

such as how women lead their lives, public health, the

ability of the states to protect the health of their citizens,

and the overall condition of the social systems in the

United States.

B. Circumstances Make Timely The Motion

Brought Under Rule 60(b)

Rule 60(b) of the Federal Rules of Civil Procedure allow

for earlier decisions to be changed when “(5) ... it is no

longer equitable that the judgment should have prospective

* See Otis H. Stephens, Jr. and John M. Scheb II, American

Constitutional Law at 24 (3rd ed. 2003).

* See Otis H. Stephens, Jr. and Joh M. Scheb II, American

Constitutional Law at 25 (3rd ed. 2003).

7

application; or (6) any other reason justifying relief from

the operation of the judgment.” The Rule states that a

motion under sections (b)(5) and (b)(6) must be made

“within a reasonable time”. ““‘What constitutes reasonable

time must of necessity depend upon the facts in each

individual case.’ The courts consider whether the party

_ opposing the motion has been prejudiced by the delay in

seeking relief and they consider whether the moving party

had some good reason for his failure to take appropriate

action sooner. .. . In some of the . . . cases the court merely

states the time interval involved and says that it was

unreasonable but undoubtedly the court ferms this judg-

ment in the light of the circumstances of the particular

case.”” Indeed, there is no time limit particularly when it

comes to Rule 60(b)(6). Strama v. Peterson, 96 F.R.D. 198,

199 (D.C. Ill. 1982) (citing Wright and Miller Section

2866).

In the instant case, the District Attorney for Dallas

County, Texas has not filed any opposition to the Rule 60

Motion filed by Norma McCorvey. Indeed, he has no

opposition to the Petition for Writ of Certiorari. These are

not the actions of a party that has been prejudiced or

stands to suffer prejudice by any delay from the Petitioner.

Petitioner explains the circumstances as to why she

did not file the Rule 60 motion sooner than 2003, and

these circumstances are intimately tied up with how the

case came to be. Norma McCorvey was an uneducated

woman living on the streets (Norma McCorvey Affidavit,

Para. 8); she did not understand just what abortion meant

(Norma McCorvey Affidavit, Paras. 9 and 12); and she was

“drunk or stoned” for a very long time after the decision

(Norma McCorvey Affidavit, Para. 26).

* See, Wright and Miller Section 2866.

8

These circumstances also include what amounts to

manipulations by the lawyers of the Petitioner more than

thirty years ago. This manipulation included repeatedly

telling her that an unborn child was “only tissue” (Norma

McCorvey Affidavit, Paras. 9, 14); never explaining what

abortion involved (Norma McCorvey Affidavit, Paras. 12,

14); allowing Petitioner to sign an affidavit without expla-

nation, without understanding, and without even reading

it (Norma McCorvey Affidavit, Para. 13); and only speak-

ing with her two times — to sign the affidavit, and to

discuss the case over “pitchers” of beer before agreeing to

be the plaintiff (Norma McCorvey Affidavit, Paras. 8, 13).

After years of working in abortion facilities, Norma

McCorvey accepted “what abortion really is: ... a violent

act which kills human beings and destroys the peace and

the real interests of the mothers involved.” (Norma

McCorvey Affidavit, Para. 26) She had spent years observ-

ing that women are not given information on the proce-

dure, that women were not told of the options, that no one

explained the psychological and physical ramifications of

abortion, there was no time for the mother to reflect, and

there was no informed consent. (Norma McCorvey Affida-

vit, Para. 22) She witnessed the unsanitary condition of

these facilities (Norma McCorvey Affidavit, Para. 20), and

the uncaring actions of unqualified abortionists who risked

the lives of the women by their actions (Norma McCorvey

Affidavit, Para. 21). All of these observations, submitted

under oath, stand in striking contrast to the findings of

this Court in Roe v. Wade that abortion is a benign, safe

procedure. A great injustice has been done to the women of

America, and this injustice threatens to be allowed to

continue unless it is addressed in this Petition.

The issues of fact and law (as discussed more fully

below) are simply of so compelling a nature that the “out”

of mootness should not be employed. Ironically, before Roe

>= —

9

v. Wade, policy discussions could be carried on more openly

and honestly than today. It is time to address the uncon-

troverted evidence of the negative impact of abortion so as

to prevent the continuation of injustice.

Ill. PETITIONER’S MOTION PURSUANT TO RULE

60(b)(5) AND 60(b)(6) PRESENTS MORE THAN

SIGNIFICANT CHANGES IN BOTH FACTUAL

CONDITIONS AND THE LAW

A. The Conditions Under Rule 60(b)(5) Have

Been Met

Petitioner successfully established the basis for a

motion under Rule 60(b)(5) motion and the District Court

erred also in not granting the motion. Those requirements

were set forth by this Court in Agostini v. Felton, 521 U.S.

203, at 215, 117 S.Ct. (1997):

“In Rufo v. Inmates of Suffolk County Jail, supra,

at 384, 112 S.Ct. at 760, we held that it is appro-

priate to grant a rule 60(b)(5) motion when the

party seeking relief from an injunction or consent

decree can show a ‘significant change either in

factual conditions or in law.’ A court may recog-

nize subsequent changes in either statutory or

decisional law. ... ‘The court cannot be required

to disregard significant changes in .aw or facts if

it is satisfied that what it has been doing has

been turned through changed circumstances into

an instrument of wrong.’”

Changes in the factual circumstances must not have been

anticipated at the time of the original decision. This Court

went on to say in Agostini, a case involving increased

school costs, that “[P]redictions of additional costs

turn[ing] out to be accurate does not constitute a change in

factual conditions warranting relief under Rule

60(b)(5).... ‘Ordinarily ... modification should not be

10

granted where a party relies upon events that actually

were anticipated at the time [the order was entered]’ .. .”

Id. at 216-217.

It is clear from a reading of Roe v. Wade, that there is

no anticipation of harmful physical effects on women, men,

or society. Indeed, there is no discussion other than that

abortion, as a medical procedure, may be safer than

childbirth. The Court concluded that ‘carrying a child to

term and that childbirth may cause greater harm to a

woman than abortion:

“The detriment that the State would impose

upon the pregnant woman by denying this choice

altogether is apparent. Specific and direct harm

medically diagnosable even in early pregnancy

may be involved. Maternity, or additional off-

spring, may force upon the woman a distressful

life and future. Psychological harm may be im-

minent. Mental and physical health may be

taxed by child care. There is also the distress, for

all concerned, associated with the unwanted

child, and there is the problem of bringing a child

into a family already unable, psychologically and

otherwise, to care for it. In other cases, as in this

one, the additional difficulties and continuing

stigma of unwed motherhood may be involved.

All these are factors the woman and her respon-

sible physician necessarily will consider in con-

sultation.” Jd., at 153.

The Court focused on how the abortion procedure was

safer than birth:

“Modern medical techniques have altered this

situation. Appellants and various amici refer to

medical data indicating that abortivn in early preg-

nancy, that is, prior to the end of the first trimester,

although not without its risk, is now relatively

safe. Mortality rates for women undergoing early

11

abortions, where the procedure is legal, appear to

be as low as or lower than the rates for normal

childbirth.” Jd., at 149.

The Court did not discuss, nor did it anticipate, any

long-term physical and emotional effects of abortion nor

did it ever anticipate that childbirth may become safer.

Indeed, there is no indication of any negative ramifications

of abortion to either aborting women or society at large.

The research since the Court’s holding in Roe v. Wade

clearly shows that abortion poses long term health and

psychological harm and that it has become more danger-

ous than childbirth.

Death rates associated with abortion are higher than

those mortality rates associated with childbirth. (Affidavit

of David C. Reardon, p. 7.) Women who have had abortions

experience significant negative psychological sequelae.

(Affidavit of David C. Reardon, p. 42.) Women are gener-

ally not offered adequate screening for risk factors thereby

making more likely that abortion will cause psychological

trauma. (Affidavit of David C. Reardon, p. 53.) “There is

no statistically validated medical evidence that abortion is

ever more likely to be beneficial to any group” of women

under any circumstance. (Affidavit of David C. Reardon, p.

89.) Childbirth is more beneficial than abortion in at least

the following areas: reducing the risk of breast cancer,

cervical cancer, ovarian cancer, liver cancer, endrometrial

cancer, and colon and rectal cancer. (Affidavit of David C.

Reardon, p. 96.) Women who undergo childbirth have

lower rates of depression than do women who abort, and

women who abort have higher rates of clinical depression,

smoking, and substance abuse. (Affidavit of David C.

Reardon, p. 96.)

12

B. Sufficient Grounds Exist for the Applica-

tion of Rule 60(b)(6)

Rule 60(b)(6) provides for relief from a judgment or

decision to prevent manifest injustice. It is an equitable

remedy that relies on the Court’s equitable powers. This

Court held in Klapprott v. United States, 355 U.S. 601, at

614-615, 69 S.Ct. 384 (1949). Klapprott v. United States,

decided near the inception of Rule 60(b)(6), involved the

loss of citizenship by an individual. In finding this loss as

a circumstance that justified relief under Rule 60(b)(6),

this Court held “It may result also in loss of both property

and life, or of all that makes life worth living.” Jd. at 612.

“In simple English, the language of the ‘other reason’

clause, for all reasons except the five particularly speci-

fied, vests power in courts adequate to enable them to

vacate judgments whenever such action is appropriate to

accomplish justice.” Adams v. Merrill Lynch Pierce Fenner

& Smith, 888 F.2d 696, 702 (10th Cir. 1989). “A change in

relevant case law by the United States Supreme Court

warrants relief under Fed.R.Civ.P.60(b)(6).” Id. In United

States v. McDonald, 86 F.R.D. 204, 208 (D.C. Til. 1980), the

District Court emphasized the importance of liberally

allowing Rule 60(b)(6) motions:

“Moreover, once extraordinary circumstances or

hardship is found, Rule 60(b)(6) is to be liberally

applied to ‘accomplish justice.’ 7 Moore’s Federal

Practice P. 60.27(2), pp. 352 et seq.”

It is not difficult to see that the harm caused by

abortion (depression, breast cancer, cervical cancer, sub-

stance abuse, etc.) stands to rob so many unsuspecting of

“all that makes life worth living.” The relief available

under Rule 60(b)(6) should be made available to the

Petitioner.

13

IV. CHANGES IN FEDERAL JURISPRUDENCE

HAVE CHANGED THE LEGAL BASIS OF ROE

V. WADE

The Tenth Amendment to the United States Constitu-

tion reserves powers to the States, and is an essential

component of Federalism in the United States: “The

powers not delegated to the United States by the Constitu-

tion nor prohibited by it to the States, are reserved to the

States respectively, or to the people.”

“Inherent police power belongs to the states.” XO

Missouri v. City of Maryland Heights, 362 F.3d 1023 (8th

Cir. 2004). The Court has a long history of recognizing the

existence of state police powers. In Berman v. Parker, 348

U.S. 26, 32, 75 S.Ct. 98 (1954) the Court opined that

“Public safety, public health, morality, peace and

quiet, law and order — these are some of the more

conspicuous examples of the traditional applica-

tion of the police power to municipal affairs. Yet

they merely illustrate the scope of the power and

do not delimit it.”

“The exercise of the policy [sic] power for the general

welfare of the public is a right reserved to the states by the

Tenth Amendment to the Constitution.” Brown ov.

Brannon, 399 F. Supp. 133, 147 (M.D.N.C. 1975). “Each

state has an interest in protecting the health and the

physical and mental well-being of her citizens. ... A state

legislature pursuant to its police power has the right to

enact legislation which attempts to improve and protect

the health and well-being of her citizens.” Kleid v. Board of

Education, 406 F.Supp. 902, 905 (W.D. Ky. 1976).

Since the 1970s, the relationship between the States

and Federal government has undergone a revision. “[T]he

Tenth Amendment reserves to states all powers not spe-

cifically granted to the national government or prohibited

14

to the states. It has been resurrected from its earlier

obscurity to serve as the legal basis for striking down

federal laws that the Court majority believes interfere

with powers reserved to the states.”* There has occurred

what has been termed a “devolution revolution” in which

many functions have been returned to states.’

In what scholars have termed the “new federalism”,

judicial decisions since the mid 1970s have increasingly

recognized the sovereignty, and importance, of the states

that comprise this indissoluble union. Texas v. White, 74

U.S. 700, 19 L.Ed. 227 (1868). The principles contained in

the Tenth Amendment of the United States Constitution

have gained new and different life by a progeny of cases

over the course of the last thirty years. These profound

philosophical and judicial changes have occurred during

the time after the Roe v. Wade decision was handed down

and constitute such a change as to profoundly effect the

prospective application of Roe v. Wade.

The importance of the States in the Federalist system

is increasing. This enhanced stature is described by this

Court in Printz v. United States, 521 U.S. 898, at 919, 117

S.Ct. 2365, 138 L.Ed. 2d 914 (1997):

“It is incontestible that the Constitution estab-

lished a system of ‘dual sovereignty.’ Gregory v.

Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 2399,

115 L.Ed.2d 410 (1991); Tafflin v. Levitt, 493 U.S.

* See, David C. Saffell and Harry Basehart State and Local

Government: Politics and Public Policies (7th ed. 2001) p. 48 citing to

Matthew D. Alder and Seth F. Kreimer, “The New Etiquette of Federal-

ism: New York, Prince, and Yesky,” in 1998 Supreme Court Review |

(Chicago: University of Chicago Press, 1999), p. 71. |

” See, James MacGregor Burns, J. W. Peltason, Thomas E. Cronin, ie

David B. Magleby, David M. O’Brien, Paul C. Light, Government by the

People (20th ed. 2004) p. 61, citing “The Devolution Revolution” Daniel

Patrick Moynihan, New York Times, August 6, 1995, p. B15.

eee

15

455, 458, 110 S.Ct. 792, 795, 107 L.Ed.2d 887

(1990). Although the States surrendered many

of their powers to the new Federal Government,

they retained ‘a residuary and inviolable sover-

eignty,’ The Federalist No. 39, at 245 (J. Madison).

This is reflected throughout the Constitution’s

text.... including (to mention only a few exam-

ples) the prohibition on any involuntary reduc-

tion or combination of a State’s territory, Art. IV,

§ 3; the Judicial Power Clause, Art. III, § 2, and

the Privileges and Immunities Clause, Art. IV,

§ 2, which speak of the “Citizens” of the States;

the amendment provision, Article V, which re-

quires the votes of three-fourths of the States to

amend the Constitution; and the Guarantee

Clause, Art. IV, § 4, which “presupposes the con-

tinued existence of the states and ... those

means and instrumentalities which are the crea-

tion of their sovereign and reserved rights,”

Helvering v. Gerhardt, 304 U.S. 405, 414-415, 58

S.Ct. 969, 973, 82 L.Ed. 1427 (1938). Residual

state sovereignty was also implicit, of course, in

the Constitution’s conferral upon Congress of not

all governmental powers, but only discrete, enu-

merated ones, Art. I, § 8, which implication was

rendered express by the Tenth Amendment’s as-

sertion that ‘[t]he powers not delegated to the

United States by the Constitution, nor prohibited

by it to the States, are reserved to the States re-

spectively, or to the people.’”

The rights and powers of states to address medical

and mental health issues are given the widest latitude.

This Court noted in Footnote 3 of Kansas v. Hendricks, 521

U.S. 346, 360 (1997) that:

“We recognize, of course, that psychiatric profes-

sionals are not in complete harmony in casting

16

pedophilia, or paraphilias in general, as “mental

illnesses.” Compare Brief for American Psychiat-

ric Association as Amicus Curiae 26 with Brief

for Menninger Foundation et al. as Amici Curiae

22-25. These disagreements, however, do not tie

the State’s hands in setting the bounds of its civil

commitment laws. In fact, it is precisely where

such disagreement exists that legislatures have

been afforded the widest latitude in drafting such

statutes. Cf. Jones v. United States, 463 U.S. 354,

365, n. 13, 103 S.Ct. 3043, 3050, n. 13, 77

L.Ed.2d 694 (1983). As we have explained re-

garding congressional enactments, when a legis-

lature ‘undertakes to act in areas fraught with

medical and scientific uncertainties, legislative

options must be especially broad and courts

should be cautious not to rewrite legislation.”

Additionally, liberties protected under the Due Process

Clause of the Fourteenth Amendment may be subject to

restriction by the State in the exercise of its power to

protect the public health and to enhance the general

welfare. “[T]he mere fact that a person is detained does

not inexorably lead to the conclusion that the government

has imposed punishment. The State may take measures to

restrict the freedom of the dangerously mentally ill. This

is a legitimate nonpunitive governmental objective and

has been historically so regarded.” Jd. at 363.

In a dissenting opinion in Stenberg v. Carhart, 530

U.S. 914, 970 (2000), it was recognized that there is

“substantial authority allowing the State to take sides in a

medical debate, even when fundamental liberty interests

are at stake.” (J. Kennedy, dissenting.) The power and

interests of the states have also been increased particu-

larly in the protection and preservation of human life.

Again, the dissent in Stenberg v. Carhart, at 957, noted

that “The political processes of the state are not to be

a ono

17

foreclosed from enacting laws to promote the life of the

unborn and to ensure respect for all human life and

its potential. [Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833, 871 (1992)]” (joint opinion of

O’Connor, Kennedy, and Souter, JJ). The State’s constitu-

tional authority is a vital means for citizens to address

these grave and serious issues, and they must if we are to

progress in knowledge and understanding and in the

attainment of some degree of consensus... .” (J. Kennedy,

dissenting.)

This Court found in Cruzan v. Director, Mo. Dept. of

Health, 497 U.S. 261, 282 (1990) that “a State may prop-

erly decline to make judgments about the ‘quality’ of life

that a particular individual may enjoy, and simply assert an

unqualified interest in the preservation of human life to be

weighed against the constitutionally protected interests of

the individual.” And, States have an interest in “protecting

vulnerable groups — including the poor, the elderly, and

disabled person; — from abuse, neglect, and mistakes.”

Washington v. Glucksberg, 521 U.S. 702, 731 (1997).

V. THE FACTUAL FOUNDATION OF ROE V.

WADE IS UNDERMINED AND TO ALLOW ITS

CONTINUED PROSPECTIVE APPLICATION IS

UNJUST

A fundamental tenet of the Court’s decision in Roe v.

Wade was the necessity of preserving the health of the

mother. The Court recognized the interest the State of

Texas had in preserving that health:

“We repeat, however, that the State does have an

important and legitimate interest in preserving.

and protecting the health of the pregnant

woman, whether she be a resident of the State or

a non-resident who seeks medical consultation

and treatment there, and that it has still another

18

important and legitimate interest in protecting

the potentiality of human life. These interests

are separate and distinct. Each grows in sub-

stantiality as the woman approaches term and,

at a point during pregnancy, each becomes ‘com-

pelling.’ |

“With respect to the State’s important and le-

gitimate interest in the health of the mother, the

‘compelling’ point, in the light of present medical

knowledge, is at approximately the end of the

first trimester. This is »0 because of the now-

established medical fact, referred to above at

725, that until the end of the first trimester mor-

tality in abortion may be less than mortality in

normal childbirth. It follows that, from and after

this point, a State may regulate the abortion pro-

cedure to the extent that the regulation reasona-

bly relates to the preservation and protection of

maternal health.” Jd., 162-163.

In Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992), this Court did not have the facts

necessary to challenge the decision in Roe v. Wade:

“Because neither the factual underpinnings of

Roe’s central holding nor our understanding of it

has changed (and because no other indication of

weakened precedent has been shown), the Court

could not pretend to be reexamining the prior

law with any justification beyond a present doc-

trinal disposition to come out differently from the

Court of 1973.” Id., 860.

However, Planned Parenthood of Southeastern Pa. v. Casey

recognized that Roe v. Wade could be changed, if not

overturned, were its factual foundations challenged.

Woman after woman provided affidavits that an-

swered three questions: “How has your abortion affected

you?”, “Based on your own experiences, what would you

19

tell a woman considering an abortion?”, and “Based on

your own experience, what would you tell a court that

believes abortion should be legal?” The answers from all of

these women were that abortion caused psychological,

physical, and/or relational difficulties. Not a one recom-

mended abortion, and they all asked the court to at least

know the truth of what abortion does to women. The

instant case presents a challenge to these foundations.

With over 5,300 pages of testimony from nearly one

thousand women who had abortions, along with the expert

opinions of two health care professionals, Roe v. Wade is

seriously challenged. The uncontroverted evidence pro-

vided by the Petitioner shows in detail the physical,

emotional, and psychological harm done to the women who

have undergone abortions.

Planned Parenthood of Southeast Pa. v. Casey made

clear that abortion affects those other than the woman

having the abortion. Abortion affects the spouse, family,

and society at large. Id. at 852.

“Elective abortion is an important cause of child

abuse. ... Recent evidence indicates many women harbour

strong guilt feelings long after their abortions. Guilt is one

important cause of child battering and infanticide. Abor-

tion lowers women’s self-esteem and there are studies

reporting a major loss of self-esteem in battering par-

ents....”° Evidence shows that psychological trauma

occurs in those other than the woman electing abortion.

Some of these groups are: children who have had either a

brother or sister, or both, who were aborted; children with

developmental disabilities or handicaps; “children who

* See P. Ney, M.D. Relationship Between Abortion and Child Abuse

Canada Journal of Psychiatry, vol. 24, pp. 610-620.

20

survived deliberate attempts to terminate their lives by

saline, suction curettage or hysterotomy”.”

Abortion destroys interpersonal relationships, whether

these be marriages or not.” Men are negatively affected and

in turn they engage in behavior that is destructive to them-

selves and society at large.’ The impact to society has gone

well beyond what was anticipated by the Roe v. Wade court.

CONCLUSION

For the foregoing reasons, the reasons contained in

the petition and for those reasons discussed by other

amicus curiae, the petition for a writ of certiorari should

be granted.

Respectfully submitted,

February 8, 2005 DaviID A. WEMHOFF

105 E. Jefferson, Suite 400

South Bend, Indiana 46601

(574) 234-3900

(574) 236-2839

Counsel for Amicus Curiae

Brenda Alexander

* See Philip G. Ney, Emotional and Physical Effects of Pregnancy

Loss on the Woman and Her Family: A Multi-Centered Study of Post-

Abortion Syndrome and Post-Abortion Survivor Syndrome, Post-

Abortion Aftermath (Sheed & Ward 1994) Michael T. Manion, editor;

p. 74.

"© See, Vincent M. Rue, The Psychological Realities of Induced

Abortion, Post-Abortion Aftermath (Sheed & Ward 1994) Michael T.

Manion, editor; p. 26; Theresa Burke and David C. Reardon, Forbidden

Grief (Acorn Books 2002) pp. 201-220.

' See, Thomas Strahan, Portraits of Post-Abortive Fathers Devastated

by the Abortion Experience, Association for Interdisciplinary Research in

Values and Social Change Nov/Dec 1994, pp. 2-3; David C. Reardon,

Forgotten Fathers and Their Unforgettable Children The Post Abortion

Review 4(4) Fall 1996.

tur.