That’s what liberal columnist Richard Cohen says today.

Conservatives — and some liberals — have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me — I’m pro-choice, I repeat — but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.

Captain Ed reacts with:

Originalism could hardly get a better explanation these days, especially in this media environment. Originalism limits the Court’s ability to proclaim policy by “fiat”, as Cohen rightly calls it. It protects against ends-justifying-means rationalizations, and it requires the Legislature to do its job instead. The judicial restraint in originalism keeps the courts from having to revisit questions about its self-created right to privacy with silly questions about the constitutionality of barring prostitution. The debate on whether laws banning prostitution or drug use are good public policy belongs in Congress and the state legislatures, not in the courts.

Industrialblog agrees.

Cohen’s analysis is obvious. But it’s nice to see even liberals starting to get it: That extending rights to the unborn is a quintessential liberal issue.

Nilu agrees with the analogy but not the conclusion presented by Cohen.

This is a classic case proving how extending an analogy does not complete an argument. What Cohen ends up proving is the futility and hypocrisy of something called “law”.

Andrew over at Confirm Them points out that Cohen can’t have it both ways.

He seems to want to keep Griswold though. Eeny Meeny Miny Moe. As I’ve written before at this site, the legal theory of the two cases (substantive due process or SDP) is indistinguishable, and equally bogus in both cases.

Steven also picked up on this, but from the opposite perspective.

I shudder to think of the consequences of this anti-Griswold point of view wins out.

Blue Moon Mama is sticking with the ends justifies the means.

Though I understand Cohen’s reasoning, I find it hard to believe that a pro-choice woman would be as quick to find such a scenario a welcome relief from defending musty old Roe.