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Saturday, September 18, 2004

Fifth Circuit rejects McCorvey Appeal But Questions Legitimacy of 'Roe v. Wade. This article by a Texas attorney is posted at

In her concurrence, Jones was largely sympathetic to much of the evidence that McCorvey presented explaining why Roe v. Wade should be reconsidered. This evidence included 1,000 affidavits from women who've had abortions and claim they have suffered long-term emotional damage. It also offered studies by scientists finding that women can be damaged physically and emotionally by having an abortion.

"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," wrote Jones in her concurrence.

Jones added that she was not saying that McCorvey would prevail on the merits of persuading the Supreme Court to reconsider Roe. But she wrote that unless the Supreme Court creates another exception to the mootness doctrine, it will never be able to examine its factual assumptions on a record made in court.

"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," Jones wrote. "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."

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