The New Electoral Battleground for Abortion: State Supreme Courts

As presidential candidates and state lawmakers campaign on the future of abortion in the United States, elections for the third branch of government have largely escaped scrutiny on the issue.

Until now.

Since the United States Supreme Court overturned Roe v. Wade, the state Supreme Court justice elections have become a new political frontier in the fight over abortion, with interest groups pouring unusual amounts of money into typically little-known races.

According to the Brennan Center for Justice, a record $100.8 million was spent on state justice races in the election cycle when the 2022 Dobbs decision overturned Roe. Right and left funding is now roughly equal, the Brennan Center reported, and the current election cycle is expected to set a record for the most money spent on state Supreme Court elections.

“Whether we like it or not, big spending and issue campaigns in state judicial elections are here to stay,” said Michael Milov-Cordoba, an attorney at the Brennan Center, a nonpartisan justice and policy think tank.

We are in the fight of our lives to protect and restore our fundamental freedoms, and our courts are the front line.

— Alexis McGill Johnson, Planned Parenthood Action Fund

Last week, super PAC Planned Parenthood Votes and the National Democratic Redistricting Committee announced they would invest $5 million in state Supreme Court races “to protect democracy and reproductive rights.”

“We are in the fight of our lives to protect and restore our fundamental freedoms, and our courts are the front line,” said Alexis McGill Johnson, president and CEO of affiliate Planned Parenthood Action Fund, in a statement.

Eighty Supreme Court seats in 33 states will be on the ballot in November. Some judges will run against their opponents (abortion was an issue in such an election this month in Georgia). Other sitting judges face retention votes.

Retention elections typically fly under the radar with little campaigning or media attention. But in the swing state of Arizona, two judges up for retention, Kathryn Hackett King and Clint Bolick, sided with the majority that decided that the state's near-total ban on abortion since 1864 superseded the state's 2022 law against abortions after 15 weeks of pregnancy.

Lawmakers rushed to repeal the 1864 law in a close vote, but a group called Progress Arizona is targeting Bolick and King with a campaign to remove them.

“Typically, I would never put a penny into betting on someone losing a retention election,” Rebecca Gill, an associate professor of politics at the University of Nevada, Las Vegas, said of the chances for Arizona judges. “But in this case, I actually think it's a little more plausible.”

If voters decide not to hire a judge, Gov. Katie Hobbs will decide on the replacement — the first time in years that a Democratic governor in Arizona would make an appointment to the state's highest court.

A constitutional amendment to protect access to abortion is also likely to be proposed in the Arizona election, which could drive more voters to the polls.

“Some of these culture war cases are easier for most people to understand,” said Mary Ziegler, a UC Davis law professor and author of “Abortion and the Law in America: Roe v. “Wade to the Present.” “There's also a history in the United States that issues around sex and gender are really fundamental and polarizing.”

Since the 2022 midterm elections, Democrats have criticized abortion as an important issue to drive angry voters to the polls. This has become especially true in 2024.

“Let's face it, I mean, Democrats are not clamoring to be able to vote for Joe Biden,” Gill said. “Enthusiasm isn't really that high, so by being able to get those people there, using these abortion provisions on the ballot, you can change the shape of the electorate for that cycle.”

Activism and money for state Supreme Court seats have historically come from the right, experts say. Case in point: In 2010, conservatives furious over the Iowa Supreme Court's ruling allowing same-sex marriage selected three justices for retention. All three were expelled from the court.

The growing presence of cash in state Supreme Court elections may affect which judges run for election, Gill said.

“Many judges tend not to be very good at [fundraising], because it's really not typical of the way most lawyers are trained,” Gill said. “People who would be put off by the thought of having to raise money, even if it were at arm's length, are no longer running for these positions. “So changes to the way elections work will absolutely change the people who will run.”

Some court watchers worry that the increased attention paid to state judicial elections could erode the courts' impartiality. The Brennan Center supports a merit process for selecting new judges, Milov-Córdoba said, with long terms “to avoid some of the politicization that comes with judicial elections.”

Of course, judges are still bound by the law and cannot unilaterally make policy changes. Bolick, one of the Arizona judges vying to keep their seats in November, loudly defended his vote on the abortion decision in a Arizona Republic Op-Ed last week, criticizing his opponents for what he saw as an attack on an independent judiciary.

“They claim that the abortion decision reflected the political preferences of the court majority rather than the law. Nonsense,” she wrote. “Serious commentators, liberal and conservative, who have actually read the decision (which I encourage voters to do), agree that it is solidly based on the law.”

Some jurists say politics has always been a part of the judiciary and that increased attention raises awareness of the crucial role judges play in government.

“All judges are representatives, even though we don't like to think of them that way,” said Todd Curry, an associate professor of politics at the University of Texas at El Paso. “Traditionally, there had been a kind of general concern, stemming from the National Bar Association. — you didn't really campaign [for judicial seats]. Now, we're definitely seeing judges saying, 'Okay, to do this, I have to be a representative.' In fact, I have to campaign on certain issues.'”

John Barrow, a former Democratic congressman, made abortion the center of his recent failed attempt to replace Justice Andrew Pinson on the Georgia Supreme Court.

Georgia's conservative governor, Brian Kemp, spent $500,000 to support Pinson's campaign. Pinson had previously defended abortion limitations in the state while he served as the state's attorney general.

Barrow, who sometimes wore a pink T-shirt emblazoned with the phrase “Empower Women” on the campaign trail, argued that Georgia's constitution protects access to abortion. A lawsuit challenging a 2019 law against abortions once a “heartbeat” (actually a flutter of embryonic heart cell activity) can be detected is making its way through the Georgia court system and could reach the state Supreme Court.

“In this case, we have a heartbeat law in court, and John Barrow specifically says the reason I'm running is to have an abortion on demand in Georgia,” said Cole Muzio, president of Frontline Policy Action, an organization conservative political action committee in Georgia that has endorsed Pinson. “And that's something that legislative or state candidates can say, but it's not something that judges are supposed to say in any capacity.”

Barrow's explicit stance on abortion prompted Katherine Wertheim, a fundraising consultant in Ventura, to write postcards for the California candidate. Wertheim, a registered Democrat, said she prefers judicial candidates to be open about where she stands so people can make informed decisions about how to vote.

“It's a lovely idea to think that judges don't make a decision until [seeing] a case,” he said, adding: “I would love to go back to a world where I could believe that judges would be non-partisan. …But we no longer live in that lovely world. And yes, I think it is perfectly fine for a candidate to say who he is and how he will vote.”

A judge's position or party is not always obvious to voters. Some states, like Michigan, do not publish their party affiliations on the ballot.

Like nearby Ohio, Michigan has a close election for the high court in the fall. Both courts now have narrow partisan majorities. In Michigan, where two seats were won in November, four of the seven judges were nominated by Democrats. Ohio, where Republicans have the majority, has three seats on the ballot.

Both states voted to protect abortion access in their state constitutions in the past two years, and cases involving abortion laws are making their way through the courts.

The Florida Supreme Court also has two seats up for grabs after a banner year for abortion. The state court recent bug led to a six-week abortion ban go into effect, but also allowed for a ballot measure that would protect access to abortion.

Wisconsin is perhaps the most notable example in recent history of how abortion animates a state supreme court race. Liberal Janet Protasiewicz faced conservative Dan Kelly, a former state judge. Whoever won would join the court to rule on the state's abortion ban in 1849.

Donors from both sides flooded the state with a total of $51 million, more than double the cost of any previous election for a state Supreme Court seat, according to the Brennan Center. When Protasiewicz won Last April, he flipped the court toward a Democratic majority. The 1849 law has not yet come before the court.

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