I'm curious about how this would work, from a purely numbers perspective; assume for a second (as Balkin and Levinson do not), that the current political landscape is taken as exogenous. Assume also that the Democrats pick up three Senate seats in November (OH, PA, RI seem the most likely candidates). 51-49 Senate; Sens. Snowe, Collins, Specter, and Smith (but not, I think, Coleman) defect to the Democrats, putting them at 53. Are there not three Democrats in the Senate who would go the other way? Ben Nelson, for one; Pryor? Baucus? Johnson? Conrad? Dorgan? Salazar? Bob Casey? Harry Reid? That would be one interesting whip count, for sure. (I can just see the efforts on either side to read the defectors out of the party, and I don't even want to think about how crazy blogs would get at that point...)

But you're right, of course, that if Roe were to be overturned, it would take a while, that the political landscape would probably change in profound ways while that happened, and that a flat outright ban is probably a big ask in any plausible scenario. I'm afraid I wasn't thinking in whip count terms in my earlier post, and I should have been. Let me ask a different question: how do you see the politics of legislation/regulations that would, without an explicit ban, in practice drastically limit access to abortions nationally, to make the country as a whole like South Dakota or Mississippi? Taking that approach seems to me to be subtler, more diffuse, and harder to oppose; do you think that would be enough to give it a fair chance of success in Congress?

It's my belief that there simply don't exist the votes in the current Senate, or in any near-term post-Roe election cycle, to ban abortion outright as opposed to passing minor limitations one way or the other. Some further, very sharp, thoughts on the politics of this are available from Jack Balkin and Sandy Levinson here.

[And joking aside, the Times knew about the blog post when I wrote the piece.]

Never mind the dubiousness of pre-emptively defending an op-ed in your blog; what about the problem of expanding a blog post into an op-ed in the Sunday NYT? This is clearly an issue that requires a Conference on Blogger Ethics.

More seriously: I find the bulk of the argument you lay out, Will, to be plausible and convincing, with one important exception. You say at the beginng of your argument that Congress wouldn't pass a federal law banning most or all abortions if Roe and progeny were to be overturned. Why not? It's not like the conservative Republicans who would sponsor and pass such a ban would let federalism concerns get in their way -- look at the Terri Schiavo imbroglio. Such Republicans are perfectly willing to pass a federal law banning particular types of abortions, so why not abortion as a whole?

If the argument is that Congress would be willing to try, but that such a ban wouldn't pass Commerce Clause muster, I find that somewhat more plausible, but I still don't think I buy it. We are, after all, dealing with a Commerce Clause jurisprudence that has given us both Wickard and Raich, no? I find it improbable that Congress would be unable to come up with some kind of jurisdictional/economic hook on which to hang an abortion ban. I take it you disagree; why?

I have an op-ed titled States of Confusion in Sunday's New York Times.

It is bad practice to use one's blog to expound ex ante defenses of one's other publications, but let me just say for the record that while there are very good reasons to think that Roe v. Wade should be overturned, I think that the consequentialist anti-Roe argument is a bad one, and it is my target. Attacks on Roe must be legal, not political.