McCorvey v. Hill

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 17, 2004 September 14, 2004
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

No. 03-10711

NORMA McCORVEY, FORMERLY KNOWN AS JANE ROE,

Plaintiff-Appellant,

versus

BILL HILL, DALLAS COUNTY DISTRICT ATTORNEY,

Defendant-Appellee.

Appeal from the United States District Court
For the Northern District of Texas

Before JONES, WIENER, and PRADO, Circuit Judges.

EDITH H. JONES, Circuit Judge:

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.

BACKGROUND

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

DISCUSSION

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.

A. Three-Judge Panel

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

1
We dispensed with oral argument in this case because the facts and
legal arguments are adequately presented in the briefs and record, and the
decisional process would not be significantly aided by oral argument. FED. R.
APP. P. 34(a)(2).
2
PUB. L. 94-391, AUG. 12, 1976, 90 STAT. 1119.

2
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).

B. Rule 60(b)

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.

3
 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

(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 (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

4
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, 356 S.W.2d 138, 139 (Tex. 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).

3
As noted above, an exception to this mootness rule exists where there
is evidence, or a legitimate reason to believe, that the state will reenact the
statute or one that is substantially similar. See City of Mesquite v. Aladdin’s
Castle, 455 U.S. 283, 289, 102 S. Ct. 1070, 1075 (1982); Northeastern Florida
Chapter of Associated Gen. Contractors, 508 U.S. 655, 662, 113 S. Ct. 2297, 2301
(1993). This exception does not apply to the instant case. Texas has not
adopted any substantially similar statute, nor is there a reasonable belief that
it plans to reenact the statutory provisions struck down in Roe.

5
 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

C. Evidentiary Hearing

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

4
The district court did not resolve the case on mootness grounds.
Rather, the district court held that “McCorvey’s 30-year delay is of such a great
magnitude that her motion was not made within a reasonable time due to the length
of time alone.” Essentially, the district court concluded that a 30-year delay,
regardless of the circumstances, is too long as a matter of law. We disagree.
Rule 60(b)(5) and (b)(6) do not require the motion for relief from judgment be
brought within a limited period of time. Instead, these provisions require only
that the motion “be made within a reasonable time[.]” FED. R. CIV. P. 60(b).
Therefore, “[w]hat constitutes a reasonable time under Rule 60(b) depends on the
particular facts of the case in question.” Fed. Land Bank of St. Louis v.
Cupples Bros., 889 F.2d 764 (8th Cir. 1989); United States v. Wyle, 889 F.2d 242,
249 (9th Cir. 1989) (“What constitutes a reasonable time depends on the facts of
each case.”) (citation and quotation omitted); Holland v. Virginia Lee Co., Inc.,
188 F.R.D. 241, 248 (W.D. Va. 1999) ([T]here is no set time period distinguishing
timely from untimely motions outside of the absolute, one-year time frame for
Rule 60(b)(1)-(3) motions.”). Accordingly, the district court erred in initially
determining that the 30-year delay was “unreasonable” without examining the facts
and circumstances of this particular case. The district court did hold, in the
alternative, that the 30-year delay was “unreasonable” under the “facts and
circumstances” of the case. However, we need not reach that issue, which would
require a substantive critique of McCorvey’s claims, in light of our resolution
of the matter on mootness grounds.

6
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.

CONCLUSION

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.

7
EDITH H. JONES, Circuit Judge, concurring:

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

mootness5 and brought forth, instead of a confined decision, an

“exercise of raw judicial power.” Doe v. Bolton, 410 U.S. 179,

222; 93 S. Ct. 762, 763, 35 L.Ed.2d 739 (White, J., dissenting)

(1973). 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

5
See Roe v. Wade, 410 U.S. 113, 125; 93 S. Ct. 705, 713; 35 L.Ed.2d
147 (1973) (“Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be ‘capable of repetition, yet evading review’.”)
(citations omitted).

8
emotional damage and impaired relationships from their decision.6

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.7 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.8 Third, McCorvey contends that the

6
R. at 15-1410, Affidavits of More Than One Thousand Post-Abortive
Women.
7
See R. at 1669-1718, Affidavit of David Reardon, Ph.D. (reporting on
clinical and scientific findings demonstrating that abortion is linked to
emotional, physical, and psychological problems in women and criticizing the
studies relied on by the Roe Court). See also C. A. Barnard, The Long-Term
Psychosocial Effects of Abortion (Portsmouth, NH: Institute for Pregnancy Loss,
1990); W. Franz & D. Reardon, Differential Impact of Abortion on Adolescents and
Adults, 27(105) Adolescence 161-72 (1992); M. Gissler, et al., Suicides after
pregnancy in Finland: 1987-94: register linkage study, BMJ, 313:1431-4 (1996);
B. Lask; J. Lydon, et al., Pregnancy Decision Making as a Significant Life Event:
A Commitment Approach, 71(1) Journal of Personality and Social Psychology, 141-51
(1996); B. Major & C. Cozzarelli, Psychosocial Predictors of Adjustment to
Abortion, 48(3) Journal of Social Issues, 48(3) 121-42 (1992); W. B. Miller, An
Empirical Study of the Psychological Antecedents and Consequences of Induced
Abortion, 48(3) Journal of Social Issues 67-93 (1992); W. B. Miller, Testing a
Model of the Psychological Consequences of Abortion, The New Civil War: The
Psychology, Culture, and Politics of Abortion, (American Psychological Assoc.,
Linda J. Beckman & S. Maria Harvey, eds. Washington, DC, 1998); H. Söderberg, et
al., Emotional distress following induced abortion: A Study of incidence and
determinants among abortees in Malmö Sweden, 79 Eur. J. Obstet. Gynecol. Reprod.
Biol. 173-78 (1998); H. P. Vaughan, Canonical Variates of Post Abortion Syndrome
(Portsmouth, NH: Institute for Pregnancy Loss, 1990); Gail B. Williams, Induced
Elective Abortion and Pre-natal Grief (cited by Reardon).
8
See, e.g., R. at 1721-57, Affidavit of David Reardon, Ph.D.
(reporting, based on numerous studies, investigations and interviews, that women
visiting abortion clinics receive little to no counseling (and what counseling
is received is heavily biased in favor of having an abortion), are rushed through
the process, and exposed — without sufficient warning — to health risks ranging
from unsanitary clinic conditions to physical and psychological damage); R. at
1668-1804, Exhibits to Affidavit of David Reardon, Ph.D. (studies, full
interviews, and other analysis supporting conclusions); R. 4308-5188 Client

9
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.9

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

Intake Records from Pregnancy Care Centers (cataloging the emotional, physical,
and psychological symptoms felt by hundreds of women after having an abortion who
then sought post-abortion counseling); R. at 5189-96 Affidavit of Carol Everett
(written testimony of a former abortion clinic worker, reporting that, in her
clinic, both abortion counselors and physicians worked on commission and
aggressively followed a script to encourage prompt election of the procedure —
even when the patient was not pregnant; that physicians usually performed 10 to
12 abortions per hour; that the clinic transported women to hospitals secretly
by car when complications arose (to avoid bad publicity); and that she saw one
woman die and 19 others permanently maimed by abortion procedures); R. at 10,
Affidavit of Norma McCorvey (describing abortion facilities based upon her work
experience in clinics).
9
See ALA. CODE § 26-25-1 et seq. (2000); ARIZ. REV. STAT. § 13-3623.01
(2001); ARK. CODE ANN. § 9-34-202 (MICHIE 2001); CAL. HEALTH & SAFETY CODE § 1255.7
(DEERING 2000); COLO. REV. STAT. § 19-3-304.5 (2000); CONN. GEN. STAT. § 17a-57 et seq.
(2000); DEL. CODE ANN. tit. 16 § 907A (2001); FLA. STAT. ANN. § 383.50 et seq. (WEST
2000); GA. CODE ANN. § 19-10A-1 et seq. (2002); IDAHO CODE § 39-8201 et seq. (2001);
§ 325 ILL. COMP. STAT. 2/1 et seq. (WEST 2001); IND. CODE § 31-34-2.5-1 et seq.
(MICHIE 2000); IOWA CODE § 233.1 et seq. (2001); KAN. STAT. ANN. § 38-15,100 (2000);
KY. REV. STAT. ANN. § 405.075 (2002); LA. CH. CODE ART. 1151 (WEST 2000); ME. REV.
STAT. ANN. tit. 17-A § 553 (2002); MD. CODE ANN. CTS. & JUD. PROC. § 5-641 (2002);
MICH. COMP. LAWS § 750.135 (2000); MINN. STAT. § 145.902 (2000); MISS. CODE ANN. § 43-
15-201 et seq. (2001); MO. REV. STAT. § 210.950 (2002); Mont. Code Ann. § 40-6-401
et seq. (2001); N.Y. PENAL § 260.03; PENAL § 260.15; and, SOC. SERV. § 372-g (2000);
N.C. GEN. STAT. § 7B-500 (2001); N.D. CENT. CODE § 50-25.1-15 (2001); OHIO REV. CODE
ANN. § 2151.3515 et seq. (ANDERSON 2001); OKLA. STAT. tit. 10 § 7115.1 (2001); OR.
REV. STAT. § 418.017 (2001); PA. STAT. ANN. tit. 23 § 6501 et seq. (2002); R.I. GEN.
LAWS § 23-13.1-1 et seq. (2001); S.C. CODE ANN. § 20-7-85 (2000); S.D. CODIFIED LAWS
§ 25-5A-27 et seq. (MICHIE 2001); TENN. CODE ANN. § 68-11-255 (2001); TEX. FAM. CODE
ANN. § 262.301 et seq. (WEST 1999); UTAH CODE ANN. § 62A-4a-801 et seq. (2001); WASH.
REV. CODE § 13.34.360 (2002); W. VA. CODE § 49-6E-1 et seq. (2000); WIS. STAT. ANN.
§ 49.195 (WEST 2001); WYO. STAT. ANN. § 14-11-101 et seq. (MICHIE 2003).

10
earlier than was then believed.10 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.11 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

10
See R. 5197-5347 (submissions from numerous individuals, each holding
an MD or PhD, reporting that unborn children are sensitive to pain from the time
of conception, and relying on peer-reviewed, scientific journals). See, e.g.,
Mann et al., Prevention of Allogeneic Fetal Rejection by Tryptophan Catabolism,
281 Science 1191 (1998); P.W. Mantyh, Inhibition of Hyperalgesia by Ablation of
Lamina I Spinal Neurons Expressing the Substance P Receptor, 278 Science 275
(1997)(cited by Dr. David Fu Chi Mark, Ph.D).
11
Indeed, the Court seems disinclined ever to reconsider the facts,
especially since in Casey, the Court’s determinative plurality opinion refuses
to justify Roe on its own terms and states conclusionally that “no change” in
regard to the viability of a fetus’s life “has left [Roe’s] central holding
obsolete.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833, 860, 112 S. Ct. 2491, 2812, 120 L.Ed.2d 674 (plurality opinion) (1992).

11
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 funda-

mental 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 constitu-

tional 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.

12