GOBBLEDYGOOK IS NOT CONSTITUTIONAL PRECEDENTIAL:

Third, the Roe precedent has already been overturned--by the Court.

The Roe Court rendered "a woman's decision whether or not to terminate her pregnancy" as a "right of personal privacy." Nineteen years after Roe, a fractured 5-4 Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) changed the constitutional foundation of the abortion right from "privacy" to "liberty."

Casey's change in the law of abortion is based on the Court's own admission in Roe that it did not know where the abortion right came from: "The Constitution does not explicitly mention any right of privacy." Continuing its admission, the Roe Court said that it did not know "whether" "the right of privacy" is "founded" in the 9th or 14th Amendments. Regardless, it is "broad enough" to "encompass" the decision of a woman "whether or not to terminate her pregnancy." In Casey, the unusual three-person  opinion for the Court opinion jointly authored by Republican appointees Kennedy, Sandra Day O'Connor, and David Souter, held that "the controlling word in this case is liberty."  The abortion decision is "in some critical respects . . . of the same character as the decision to use contraception," citing its contraception decisions, Griswold (1965) and Eisenstadt (1972). The right of Roe concerned "personal autonomy and bodily integrity," they said. In Griswold, the Court--as in Roe--had been likewise adrift regarding the source of the constitutional contraceptive right it invented. In that case, the right was said to exist in something it called the "penumbras" of the "specific guarantees in the Bill of Rights."

After its discussion of the first and second trimesters of pregnancy, the Roe Court, had issued a five-paragraph order--in the style of sample legislation--regulating abortion by trimesters. In explicit repudiation of Roe, the Casey Court announced that "we reject the rigid trimester framework of Roe" and substituted what has remained the standard  up to this day: that states may not restrict abortion before "viability" but may do so after viability, as long as a woman at any state of pregnancy retains the absolute right over abortion until birth if she alleges a "threat" to her life or health, including mental health--with the latter having nothing to do with any diagnosed psychological or psychiatric condition but only with what a woman alleges concerning her mental health. And with regard to health and mental health, the Court continued to follow the rule of Roe and its companion case Doe v. Bolton.

Unlike the pending Mississippi case, the validity of Roe was not expressly contested by the Casey plaintiffs, who were seeking only to overturn, inter alia, the parental consent and spousal notification provisions of a new Pennsylvania law. However, the three co-authors were sufficiently provoked by the incessant state challenges to Roe that had caused the Court to deliver eleven major abortion decisions in the nineteen years since 1973 and were obviously made uneasy by the four dissenters who were expressly rejecting Roe that they went into an extended and free-wheeling discourse on jurisprudence, precedence, American society itself, and the role of the Supreme Court in society, and the danger of causing a "loss of confidence in the Judiciary," if the Court were to overturn Roe. As such, Casey's meanderings-about in social philosophy resembled the same kind of serpentine visioning that the Court had previously delivered in Roe.

That Roe was essentially "unworkable" and bad precedent had already been alleged by two justices who supported the right to an abortion. In her dissent in the 5-4 Thornburgh (1986) decision, an earlier 1986 case having to do primarily with "informed consent" to abortion, Justice O'Connor, one of the eventual Casey joint authors, said that "the Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence" and had an "institutionally debilitating effect." Those decisions, with their "unworkable scheme for constitutionalizing the regulation of abortion," have created an "expansive role" for which "the Court is not suited." Seven years later, however, these criticisms by O'Connor did not lead her in Casey to abandon, but only to re-calibrate, the abortion right.

Even Justice Ginsburg, when she was a judge on the DC Circuit Court of Appeals, had herself sharply criticized the legal and constitutional basis for Roe: "Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action." ("Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade," North Carolina Law Review 63 (1985): 375-386, at 376.)

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