Challenge to Doe v. Bolton fails
on Jan 11, 2006 at 5:52 pm
On a day when Supreme Court nominee Samuel A. Alito, Jr., was being pressed for his views on the future of Roe v. Wade, a federal appeals court on Wednesday rejected an attempt to reopen the abortion case decided on the same day as Roe — the case of Doe v. Bolton. This marked the second decision by an appeals court in the past 16 months refusing to permit a challenge to the 1973 decisions to go forward.
The “Mary Doe” of that second case — far less famous than Roe v. Wade — is Sandra Cano, of Atlanta. Just as Norma McCorvey, the “Jane Roe” of the other case, recently had tried a legal maneuver to set the stage for reconsidering Roe, Cano attempted the same thing for Doe v. Bolton in federal court in Georgia. The maneuver was a Rule 60-b motion; the Rule gives a federal court the discretion to “relieve a party” of the burden of a prior ruling.
In an 11-page decision in Cano v. Baker (Circuit docket 05-11641), the Eleventh Circuit Court on Wednesday upheld a Georgia federal judge’s dismissal of Cano’s Rule 60-b motion. (Thanks to Howard Bashman of How Appealing blog for the tip on this decision, and for a link to it.)
Cano, like McCorvey, has gained a prominent role as a symbolic figure in the anti-abortion movement’s unrelenting opposition to the Court’s 1973 rulings establishing a woman’s right to abortion. In the beginning, both McCorvey and Cano were challengers of abortion restrictions; each now is a fervent opponent of abortion.
Roe, of course, was the basic decision on abortion rights on Jan. 22, 1973. Doe was the companion case in which the Court struck down — on the basis of Roe — Georgia’s requirements of the medical procedures for abortions, including a requirement that two doctors concur in a woman’s decision to have an abortion.
The Fifth Circuit had rejected McCorvey’s Rule 60-b motion on Sept. 24, 2004, and the Supreme Court refused to hear her appeal (docket 04-967) on Feb. 22, 2005. In the meantime, Cano was pursuing a similar effort, beginning in August 2003 in U.S. District Court in Atlanta (docket 70-13676). District Judge J. Owen Forrester denied relief on March 26, 2004, and refused on Feb. 23, 2005, to reconsider that decision. (By coincidence, no doubt, that second ruling came a day after the Supreme Court had refused to hear the McCorvey case.) Cano’s case then went to the Eleventh Circuit.
In his March 2004 ruling, Forrester wrote: “The Supreme Court alone has the prerogative to overrule its own decisions. There can be no doubt that the Supreme Court decisions in Doe and its companion case, Roe, have direct application to the present motion pending in this case, as those decisions embody the final judgment in this case. Therefore, this court is bound to apply precedent and uphold the ruling in Doe v. Bolton…As this court finds that neither new scientific knowledge nor intervening changes in law are sufficient to warrant relief from judgment, the court must deny plaintiff;s Rule 60-b motion. The court also denies the related motions for oral argument and an evidentiary hearing.”
Affirming that decision on Wednesday, the Eleventh Circuit noted that Cano had won her case in 1970, finding the Georgia abortion procedures unconstitutional. The burden of that ruling, it said, was not on Cano, but on the Georgia officials she had sued.
Noting that about 32 years had passed since filing her case initially, the Court said that Rule 60-b requires that such a motion be filed within a “reasonable time. But the Court did not base its decision on that factor. Rather, it said, the deciding issue was that Judge Forrester did not have the authority to reverse the Supreme Court’s decision in Doe or Roe, “nor do we…The Supreme Court has never overruled Roe or Doe.”
Because some of the same attorneys are involved in Cano’s case as in McCorvey’s, and because the Rule 60-b challenges are a part of a continuing strategy to test Roe, an appeal to the Supreme Court appears highly likely. By then, there could be two new members of the Court — Chief Justice John G. Roberts, Jr., of course, and perhaps a Justice Alito. That may not make a difference; there were no recorded dissents from the denial of review in McCorvey’s case on Roe last February.
