Bench Memos

NRO’s home for judicial news and analysis.

A Post-Roe World


I rarely find myself in as strong disagreement with something written by William Baude as I do today. His NYT op-ed, “States of Confusion,” argues that overturning Roe v. Wade would provoke untold chaos as different states adopt different policies, flooding federal courts with various claims, and that this chaos would require another national resolution to the debate. I find this highly implausible — an interesting academic exercise, but one largely divorced from legal reality. There are many contentious areas in which states have (or had) varying policies on contentious social issues without producing such a chaotic result (see, e.g., the post-prohibition of alcohol regulation). Most of the legal issues that Baude identifies are relatively clear, and those that are not are hardly the sort of thing that would produce “chaos.” While the variability of state laws might justify clarifying federal rules about interstate acts, this is hardly a significant federal presence in the issue (see, again, the federal role in assisting state alcohol policies).


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