Liberal Columnist Makes the Case for Overturning Roe

In a somewhat surprising column in the Washington Post, Richard Cohen actually makes an intelligent argument for overturning Roe v. Wade, something which will probably raise a few hackles with his regular readers (h/t Captain's Quarters):

If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want -- two consenting adults, after all -- but keep Jefferson, Madison and the rest of the boys out of it.

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.

Basically, Cohen, who is pro-choice, is supporting originalism, which is the approach to the Constitution most favored by conservatives. Instead of stretching, pulling and prodding the Constitution to make it say things it doesn't, originalists look for what's there and what isnt and don't try and imply things that clearly aren't in the document. Originalists believe that powers not expressly given to the Federal government belong to the states, which is exactly what the Constitution says. That approach has to make for better law as it does not leave the impression that political agendas are being promoted over common sense interpretations of the law.

When Roe federalized abortion, it took control of the issue out of the hands of the states, and did so in a pretty ham-handed manner. If Roe were overturned today, it would not end abortion in this country (as many of my fellow conservatives seem to believe), but would push the issue back to the states where it belongs. Undoubtedly many states would still approve abortion (California already has laws on the books that would kick in if Roe was overturned), but some states, especially those with Republican legislatures, would probably refuse to approve the barbaric practice, and at least in a few places in the country, the unborn would be protected.