385 F. 3d 846 - McCorvey v. Hill

This case arises from the district court's denial of McCorvey's motion for relief from judgment pursuant to Fed. Rule Civ. Proc. 60(b). For the reasons set forth below, we dismiss.

Norma McCorvey filed a Rule 60(b) motion for relief from judgment in which she sought to have the district court revisit the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). McCorvey, her identity then protected as "Jane Roe," was the named appellant in Roe. The district court denied McCorvey's motion after concluding that it was not filed within a reasonable time after final judgment was entered.1

We review the district court's denial of relief under Rule 60(b) for abuse of discretion. See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir.1998); Flowers v. S. Reg'l Physician Servs., Inc., 286 F.3d 798, 800 (5th Cir.2002). The district court's denial of an evidentiary hearing is also subject to abuse of discretion review. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir.1992).

On appeal, McCorvey: (1) asserts that the district court improperly refused to convene a three-judge court; (2) challenges the district court's ruling on her Rule 60(b) motion; and (3) contends that she was entitled to an evidentiary hearing on her Rule 60(b) motion. We address each issue in turn.

Roe v. Wade proceeded before a three-judge district court empaneled pursuant to 28 U.S.C. § 2281. See 28 U.S.C. § 2281 (1970); 28 U.S.C. § 2284 (1970) (controlling the composition and procedure of three-judge district courts). Before its repeal,2 § 2281 required a three-judge district court to hear and determine cases involving injunctions against the enforcement of state statutes based on allegations of unconstitutionality. See Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir.1977). McCorvey asserts that the single district court judge, who ruled on her Rule 60(b) motion, acted without authority. We disagree.

Although the original action was tried by a three-judge district court, the Rule 60(b) motion filed by McCorvey in 2003 was not properly a matter for a three-judge court. In United States v. Louisiana, 9 F.3d 1159, 1171 (5th Cir.1993), this court ruled, in another action determined under § 2281 by a three-judge court, that a single district court judge, acting alone after the repeal of § 2281, could properly entertain and decide subsequent modified remedial orders. The instant context is no different: A single district court judge can decide threshold questions relating to McCorvey's Rule 60(b) motion even though the underlying judgment was originally tried by a three-judge court under the former § 2281. See, e.g., Bond v. White, 508 F.2d 1397, 1400-01 (5th Cir.1975).

McCorvey argues that the district court abused its discretion in rejecting her Rule 60(b) motion for relief from judgment as untimely. A question necessarily antecedent to McCorvey's substantive claim, however, is whether she has presented a justiciable case or controversy pursuant to Article III of the Constitution. We are under an independent obligation to examine this jurisdictional question.

There are two conceivable bases for concluding that McCorvey does not present a live case or controversy — lack of standing and mootness. As the Supreme Court explained in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000), standing and mootness are related, but distinct, concepts. We may pretermit the question of standing if we find a case clearly moot. See, e.g., Nomi v. Regents of Univ. of Minn., 5 F.3d 332, 334 (8th Cir.1993).

The mootness doctrine "ensures that the litigant's interest in the outcome continues to exist throughout the life of the lawsuit ... including the pendency of the appeal." Cook v. Colgate, 992 F.2d 17, 19 (2d Cir.1993) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980)) (other citations omitted); see also Rocky v. King, 900 F.2d 864, 866 (5th Cir.1990) (controversy must remain "live" throughout the litigation process). Mootness is the fatal issue for McCorvey.

"In general, a matter is moot for Article III purposes if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir.1998). Suits regarding the constitutionality of statutes become moot once the statute is repealed. See Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414-15, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972); see also Fed'n of Adver. Indus. Executives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir.2003) ("[W]e, along with all the circuits to address the issue, have interpreted Supreme Court precedent to support the rule that repeal of a contested ordinance moots a plaintiff's injunction request, absent evidence that the City plans to or already has reenacted the challenged law or one substantially similar."); Weeks v. Connick, 733 F.Supp. 1036, 1037 (E.D.La.1990).3

Under Texas law, statutes may be repealed expressly or by implication. See Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139 (1962). The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe have, at least, been repealed by implication. Currently, Texas regulates abortion in a number of ways. For example, a comprehensive set of civil regulations governs the availability of abortions for minors. See Tex. Fam.Code §§ 33.002-011 (2000). Texas also regulates the practices and procedures of abortion clinics through its Public Health and Safety Code. See Tex. Health & Safety Code §§ 245.001-022; see also Women's Med. Center of Northwest Houston v. Bell, 248 F.3d 411, 414-16 (5th Cir.2001) (discussing various portions of the Texas Abortion Facility License and Reporting Act). Furthermore, Texas regulates the availability of state-funded abortions. See 25 Tex. Admin. Code § 29.1121 (2002); see also Bell v. Low Income Women of Tex., 95 S.W.3d 253, 256 (Tex.2002).

These regulatory provisions cannot be harmonized with provisions that purport to criminalize abortion. There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme — not an addendum to the criminal statutes struck down in Roe. As the court stated in Weeks, a strikingly similar case, "it is clearly inconsistent to provide in one statute that abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited." 733 F.Supp. at 1038. Thus, because the statutes declared unconstitutional in Roe have been repealed, McCorvey's 60(b) motion is moot.4

Finally, the district court did not abuse its discretion in denying McCorvey's request for an evidentiary hearing. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (5th Cir.1994) (denial of evidentiary hearing affirmed where court had written evidence sufficient to make its decision). An evidentiary hearing would have served no useful purpose in aid of the court's analysis of the threshold questions presented, which, as we explained, precluded the relief McCorvey sought.

For these reasons, rather than those articulated by the district court, the appeal from the district court's denial of McCorvey's Rule 60(b) motion for relief from judgment is DISMISSED.

I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.

It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness1 and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 762, 763, 35 L.Ed.2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.

McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision.2 Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions.3 Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.4 Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted.5 Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.6 In sum, if 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.7 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; see Casey, 505 U.S. at 872-78, 112 S.Ct. at 2817-21). 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. This is a peculiar outcome for a Court so committed to "life" that it struggles with the particular facts of dozens of death penalty cases each year.

Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women's mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal "viability" ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.