In reaffirming Roe, the Casey Court described the centrality
of "the decision whether to bear . . . a child," Eisenstadt
v. Baird, 405 U. S. 438, 453 (1972), to a woman's
"dignity and autonomy," her "personhood" and "destiny,"
her "conception of . . . her place in society." 505 U. S., at
851-852. Of signal importance here, the Casey Court
stated with unmistakable clarity that state regulation of
access to abortion procedures, even after viability, must
protect "the health of the woman." Id., at 846.
Reading this I began to doubt I was in actuality reading a piece of Constitutional Law. As near as I can figure it, while I was attempting to read Carhart I must have accidently turned away from my computer screen, gone downstairs and started watching Oprah.
Were we to adhere to the Ginsburg touchy-feely school of jurisprudence, where the ultimate standards are not law but any individuals sentiments concerning their "destiny" or their "conception of their place in society," is there anything that would be legitimate for Congress to legislate about?
"Gee," claims someone in California, "It is just an integral part of my personhood and my individual destiny to ingest as much crack cocaine as I can." Logically, Ginsburg would have to grant such a request. (She wouldn't of course, but only because logical consistency isn't her bag baby.)
What Ginsburg dissent comes down to is an attempt to defend an argument made in bad faith. If the meaning of the "woman's health" requirement can come down to her understanding of her personhood in relation to the cosmos, it is in effect meaningless. Indeed, it makes the Constitution not a document defining our public life as a people, but a text whose meaning is solely in the eye of the beholder.
Derrida would be proud.
I'm horrified.
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