# Amicus Curiae Brief — McCorvey v. Hill

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1306%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1154

## Text

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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
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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

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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

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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-
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CONC LOTION ....+::x= —

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1306%3A04. Public record. Not legal advice.