I'm not allowed to divulge how the Supreme Court judges voted on this; that is confidential information. However, I am able to share a few very telling details, directly from the attorneys representing Norma McCorvey:
1. The justices decided not to hear the arguments. They didn't reject the arguments, since they didn't even read them. This means the arguments can be used again (see below).
2. Norma McCorvey could file an appeal within 25 days, but it's not likely.
3. If the justices had heard her motion at all, they also would have had to consider Doe v. Bolton, the companion case. They wouldn't do that, since the latter case still is being considered by the 11th Circuit Court of Appeals in Louisiana.
4. Roe v. Wade was not reaffirmed this time. (This was done in 1992, although then the “right to privacy” was weakened to be less than an “absolute” right, allowing positive developments such as 24-hour waiting periods.) There may have been enough votes to hear the case, but if the opposed justices told those in support that they'd vote against overturning regardless, then the court would have been forced to reaffirm it, since they had accepted the case. So it is very significant that they did not reaffirm it.
5. Any state can pass a law to ban abortion, in part or completely. The Pro-choice Feminist Majority Foundation (a misnomer since it is neither truly “feminist” nor a “majority”) wrote last year that there are 30 states ready to pass laws banning abortion if Roe v. Wade is overturned: “21 states are at high risk of banning abortion, with nine other states at middle risk … 18 states still have laws completely or partially banning abortion.” South Dakota already came within one vote of passing such a ban. We learned that, most likely, if lower courts strike these laws down (some already have), then states would appeal through the court channels to the Supreme Court, thus reintroducing the arguments that Ms. McCorvey and the women of Operation Outcry: Silent No More made. This already has been done successfully elsewhere.
6. History can repeat itself. The NAACP, led by Thurgood Marshall and Charles Houston, peppered the nine Supreme Court justices from 1935 through 1954, almost 20 years, with case after case after case to overturn the racial segregation “right” that was created by the high court's Plessy v. Ferguson case. They just kept filing case after case until the critical mass of change had been reached incrementally and Brown v. Board of Education finally achieved justice. From the website of The Just Beginning Foundation (about the contribution of African Americans to the federal judiciary):
“The N.A.A.C.P.'s strategy for reaching its goals in education began by trying to undo the 1896 decision of Plessy v. Ferguson (163 U.S. 537), in which the Supreme Court said that segregation was valid if it was 'separate but equal.' The N.A.A.C.P.'s. legal committee decided that the only way to accomplish meaningful change was to attack Plessy, to [launch] a frontal assault on Plessy: separate was inherently unequal.Imagine those 30 states, at some point at, before or after Doe v. Bolton reaches the Supreme Court, passing abortion bans that get struck down and then appealing ultimately to the Supreme Court over the next 20 years. Imagine a critical mass being reached, where the justices finally acknowledge the facts of which Judge Edith Jones spoke when she wrote the decision to pass Roe v. Wade up to the Supreme Court:
“In 1935, Charles Houston suggested that the N.A.A.C.P. adopt a strategy of litigating planned test cases to secure favorable legal precedents, thereby laying the foundation for later, fuller attacks on racial discrimination and segregation. The cases were to have a 'sharply defined legal issue' that could be 'supported by demonstrable 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.”7. It's likely the states won't do this until after the Doe v. Bolton case has gone through the Supreme Court. We received word on February 24, 2005 that the 11th Circuit Court of Appeals Judge denied that motion (as expected), sending the case to the next level. He'd been holding onto it for some time in deference to the Roe case proceeding to the Supreme Court. Word is that this judge favors our motion, but as with the Roe motion, it cannot be decided by a lower court when it must end up with the high court in the end. Sandra Cano's motion to overturn Doe v. Bolton now will be appealed back to the 11th Circuit Court of Appeals, and then will go to the U.S. Supreme Court. This will take another one-and-a-half to two-and-a-half years.
The fact that Norma McCorvey is unlikely to pursue this further, does not mean it cannot be overturned at all. In fact, a Supreme Court decision is more often than not overturned from pressure brought by the states or groups like the NAACP, not by the original plaintiff. The more states that challenge the Supreme Court (and the more individuals writing personal letters to the Justices, which they do in fact read) over the next few decades, now that the facts have been amassed, the more hope we have of stopping the injustices done to us women and to our children. We must pray — pray fervently — as well.
(Annie Banno is the Connecticut State Leader of OPERATION OUTCRY: SILENT NO MORE, and one of two post-abortive women writing on the blog “After Abortion”. To contact her or sign up to receive her free newsletter, e-mail smok22andthensome@yahoo.com.)
