Contested seats on the state Supreme Court represent a hidden battle over abortion access

Abortion will be on the ballot in 10 states on Tuesday, and it is one of the key issues in the presidential battle between Kamala Harris and Donald Trump. But it is also the key to less fame more and more contested races for seats on state supreme courts, which often have the final say on whether a state will ban or protect access to the proceedings.

This year, voters in 33 states have the chance to decide who sits on their state’s supreme courts. Judges will be on the ballot in Arizona and Florida, where supreme courts recently decided to uphold abortion bans. They are also up for election in Montana, where the Supreme Court has supported abortion rights despite a deeply anti-abortion state legislature.

In addition, Supreme Court justices are on the ballot in Maryland, Nebraska and Nevada — all of which are voting on measures that could enshrine abortion access in their state constitutions. Should these measures pass, state supreme courts will almost certainly determine how to interpret them.

Anti-abortion groups are already preparing for lawsuits.

“We’re all going to end up in court because they’re going to take vague language out of these ballot initiatives to ask for specific things like funding for all abortions, abortion for minors without parental consent,” said Kristi Hamrick, chief media officer. and policy strategist for the powerful anti-abortion group Students for Life of America, which is currently campaigning on state Supreme Court races in Arizona and Oklahoma. “Judges have become a very big, important step in how abortion legislation is actually implemented.”

In Michigan and Ohio, which voted to amend their state constitutions to include abortion rights in 2022 and 2023 respectively, advocates are still fighting in court over whether these changes can be used to eliminate abortion restrictions. However, in November the ideological composition of both courts may change.

Spending on state Supreme Court races has soared since Roe fell. In the 2021-2022 election cycle, candidates, advocacy groups and political parties spent more than $100 million. according to the Brennan Center for Justice. Adjusted for inflation, that is almost double the amount spent in a previous interim cycle.

In 2023, a race for one seat on the Wisconsin Supreme Court alone cost $51 million — and revolved around abortion rights, with the liberal-leaning candidate voicing her support for the procedure. (As in many others – but not all – In the state Supreme Court races, Wisconsin candidates were technically nonpartisan.) After that election, liberals took a 4-3 majority on the Wisconsin Supreme Court. The court will now hear a case involving the state’s 19th-century abortion ban, which is currently unenforced but remains on the books.

It’s too early to count the money poured into these races this year, especially since much of it is typically spent in the final days of the election. But the spending is almost guaranteed to break records.

The National Democratic Redistricting Committee and Planned Parenthood Votes took place in May announced that they teamed up this cycle to spend $5 million on advertising, canvassing and voting in Supreme Court races in Arizona, Michigan, Montana, North Carolina, Ohio and Texas. Meanwhile, the ACLU and its Pac, the ACLU Voter Education Fund, have spent $5.4 million this year on nonpartisan advertising and canvassing efforts in Supreme Court races in Michigan, Montana, North Carolina and Ohio. The scale of these investments was unprecedented for both Planned Parenthood and the ACLU, said Douglas Keith, a senior adviser at the Brennan Center for Justice’s Judiciary Program, who follows the Supreme Court races.

“For a long time, legal campaign ads were often just judges saying they were fair and independent and had family values, and that was about it. Now you see judges in their campaign ads talking about abortion rights, voting rights or environmental rights,” Keith said.

In contrast, right-wing judicial candidates largely avoid talking about abortion, Keith said, because the issue has become ballot box poison for Republicans in the years since Roe fell. Still, the Judicial Fairness Initiative, the court-focused arm of the Republican State Leadership Committee, announced in August that it would make a “seven-figure investment” in judicial races in Arizona, Michigan, Montana, North Carolina, Ohio and Texas.

Balancing the Federal Bank

Abortion is far from the only issue over which state courts have enormous influence. They also play a key role in redistricting, LGBTQ+ rights, voting rights and more. And with the U.S. Congress in such a deadlock, state-level legislation and its legality have only become more important.

For years, conservative operatives have focused on reshaping the federal judiciary in their ideological image — an effort that culminated in Donald Trump’s appointment of three U.S. Supreme Court justices and has made federal courts generally more hostile to progressive causes. Now the ACLU hopes to transform the state Supreme Courts into what Deirdre Schifeling, its chief political and advocacy officer, calls a “counterweight” to this federal bench.

“We have a plan to work through 2030 to build a more representative court,” said Schifeling, who has a spreadsheet of the Supreme Court races that will take place in eight states in the coming years. (As a nonpartisan organization, the ACLU focuses on voter education and candidates’ “civil rights and civil liberties” records.) This cycle, The organization’s messages focused on abortion.

“Nationally you see polls showing that the most important thing voters vote on is the economy. But these judges do not really influence the economy,” said Schifeling. “Of the issues they can actually influence and have power over, reproductive rights are by far the most important to voters.”

Abortion rights advocates are even testing this strategy in some of the most anti-abortion states in the United States. In Texas, true ProPublica Reported this week that two women died after being denied emergency care due to the state’s abortion ban, former U.S. Air Force Undersecretary Gina Ortiz Jones has launched the Find Out Pac, which aims to appoint three Supreme Court justices capable of dismissal.

Justices Jane Bland, Jimmy Blacklock and John Devine, the Pac has said, “tampered with our reproductive freedom” in cases upholding Texas abortion restrictions. Now Jones wants them out.

“Why not try to hold some people accountable?” Jones said. “This is the most direct way Texas voters can make their voices heard on this issue.” (In Texas, there is no way for citizens to initiate a ballot.) The Pac has been running digital ads statewide about how the ban in Texas has jeopardized access to medically necessary care.

But since state Supreme Court races have long languished in relative obscurity, voters don’t always know much about them. and it is entirely possible that they will not vote on party lines in the seven states where ballots list the preferences of nominees for the bench. While the majority of Texans believe abortions should be legal in all or some cases, nearly half of Texans don’t recall seeing or hearing anything about their Supreme Court in the past year, according to their own Find Out Pac poll.

“This conversation we’re having in Texas about the importance of judicial races is new to us as Democrats,” Jones said. “It’s not for the Republicans.”