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Jeffrey Toobin: Roe challenge unlikely to succeed

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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The former plaintiff in Roe v. Wade is challenging the landmark abortion ruling. CNN's Dan Lothian reports. (June 18)
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(CNN) -- Norma McCorvey, once the plaintiff in Roe v. Wade, is asking the U.S. Supreme Court to overturn the landmark 1973 abortion rights ruling and consider what she says is new evidence that abortion harms women.

CNN legal analyst Jeffrey Toobin spoke Wednesday with CNN Anchor Daryn Kagan about McCorvey's request. Below is a partial transcript of that conversation:

KAGAN: Let's put the discussion aside about where people fall on this. Let's talk about the legal aspect of this. Can you do this? Can you go to the Supreme Court and say, remember that thing? Never mind.

TOOBIN: No, you can't. I mean, I think as a legal matter it is really about as clear as it can be that the Supreme Court in general does not do this with cases. And you have six of the nine justices on the court currently who have said that Roe v. Wade is a precedent that they are standing with, that they are going to support. Whether that's true when there are new appointments is a separate question.

But today, you can't file this kind of motion 30 years later, and this court is not changing its mind on Roe v. Wade.

KAGAN: But her lawyer points out that there are precedents of the Supreme Court going back 12 years later and overturning previous decisions.

TOOBIN: There is one case that they cite. It's an interesting case. I wasn't familiar with the procedural aspect of it, but what's so different about that case was that that was an injunction the Supreme Court issued on specific plaintiffs, saying you have to do "X."

And the plaintiffs came back and said, "Look, we don't have money anymore. We can't do 'X' anymore." A completely different scenario from basically saying this is what the law should be on abortion. It's just a different situation.

But they can make the petition. It's certainly legal to go in there and ask, but they're not going to win.

KAGAN: And finally, let's talk about the timing of all of this. There is a great anticipation by many people that one or two justices will very soon announce their retirement. How does that play into the politics of Roe v. Wade?

TOOBIN: Well, that's where I think Norma McCorvey may have more promise, because Roe v. Wade, it currently has six justices supporting it. But, you know, many justices are getting older. There are lots of rumors about people retiring. George Bush is committed to appointing justices [with anti-abortion views]. So, you know, they may win.

I mean, Norma McCorvey may yet get her case overturned, but the way it's going to be done is the conventional way of new justices on the court, cases coming up through the system in the ordinary way. That's where she may win. She's not going to win by getting the case of Roe v. Wade overturned.

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