McCorvey (formerly known as Roe) v. Hill [5th Circuit]
McCorvey (formerly known as Roe) v. Hill [5th Circuit]

US Court of Appeals for the Fifth Circuit, September 14, 2004. Read the opinion here [PDF]. Excerpt:

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 Suits regarding the constitutionality of statutes become moot once the statute is repealed.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 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).

Under Texas law, statutes may be repealed expressly or by implication.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abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe have, at least, been repealed by implication.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).

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.

Reported in JURIST's Paper Chase here.