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It’s long been a truism that the precedents that would need to be toppled to overturn Roe v Wade would put in jeopardy or remove the underpinnings of rights to contraception, same sex marriage and a whole range of reproductive, erotic and matrimonial autonomy and freedom this country has long taken for granted. This is based on the jurisprudence of a “right to privacy” which is the basis of numerous court decisions going back to the 1960s. In a way it is antiseptic and structural. To do away with Roe you need to do away with the right of privacy and doing away with the right of privacy means a whole raft of other decisions fall. But reading Alito’s decision he didn’t want to leave it to that. He dismisses the privacy jurisprudence out of hand and then focuses his argument on these rights not being “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

The White House just released this statement about Roe. Here’s the text and then a few comments from me.

I wanted to do some initial scoping out of the implications of the overturning of Roe for federal politics — both the impact on elections and the chances of passing federal laws to codify Roe.

The first thing is that people will tell you that there’s no practical way a federal abortion rights bill can get passed. That is definitely wrong. Whether or not such a law happens is entirely up to the results of the 2022 midterms. And it doesn’t require heroic assumptions.

In the flurry of reactions to the apparent/reported overturning of Roe last night, I saw a campaigns analyst comment that the odds of the Virginia GOP scoring a trifecta (unified control of state government) in 2023 had fallen dramatically. The Democratic Governor of Pennsylvania, I’m sure along with others I haven’t seen yet, put out a statement essentially saying ‘no need to worry about abortion rights in Pennsylvania as long as I’m here’.

POINT: CNN is now reporting that Justice Roberts planned to dissent from Alito’s majority opinion. He was willing to affirm the 15 week Mississippi law but not overturn Roe in its entirety. That sounds fairly Roberts-like in a way, though it’s notable to me that a Chief Justice would want to be on the dissenting side of perhaps the most historic decision of his tenure when he must have at most equivocal feelings about overturning Roe. In any case, the rapidity with which Roberts’ apparent decision was reported out makes me wonder whether the breakdown in secrecy with this case doesn’t go beyond the leak of Alito’s draft majority decision. Don’t know precisely what this would mean. But keep that in mind. That’s real fast.

In response to a reading recommendation over the weekend I heard from a number of readers who said something along these lines: we’re not the ones escalating. Putin and Russia began this, did all the escalating. Many of these responses came down to this: Putin and Russia are completely in the wrong here. All the escalation is coming from one side.

I wanted to flag your attention to a relatively little seen op-ed by a former federal judge named J. Michael Luttig. The title of the piece: “The Republican blueprint to steal the 2024 election.” Pretty red meat, right? His focus is something we’ve talked about before, the so-called “Independent State Legislature” doctrine. This is the idea — a truly absurd and tendentious reading of the constitution — that holds that state legislatures are the arbiters of the conduct and also the results of federal elections, entirely independent and above the laws of the given state and even the state’s constitution. But before we get into that, let’s get back to Luttig himself who I’ve rather breezily described as a “former federal judge.”