State supreme courts: Bottom of the ballot but top concern if Roe falls

The right to abortion in some states could come down to a handful of people running for positions most voters pay little attention to: state supreme court justices.

State courts are likely to be flooded with litigation that could require them to rule on access to abortion — or even contraception and fertility treatments — should the Supreme Court overturn Roe v. Wade in the coming weeks.

The possible end to federal abortion protections is spotlighting down-ballot races in the upcoming midterm elections, particularly for judges who could soon be asked to decide whether their state constitution protects a person’s right to end a pregnancy.

“Everyone wants to talk about the sexy United States Senate race, or the governor’s race. When it comes down to it, the state Supreme Court is going to determine abortion jurisprudence in the state of Ohio,” said Mike Gonidakis, president of Ohio Right to Life. “State Supreme Court elections are paramount.”

And organizations on both sides of the abortion debate are planning to spend big to tip the scales in their favor.

A record $100 million was spent on state supreme court races in 2020 in anticipation of redistricting fights, representing a 17 percent increase from the previous record-spending year in 2004, adjusted for inflation, according to a report from the Brennan Center for Justice. Court observers expect that the record could be broken this cycle.

Susan B. Anthony Pro-Life America is expanding its state affairs team, and state Supreme Court races is a new area the organization will engage in this year. The Democratic Legislative Campaign Committee is for the first time planning to strategically incorporate state supreme court races into its legislative campaign work.

High court judges in about three-quarters of states are either elected or appointed by the governor and retained on the bench after an election.

While judges are, theoretically, impartial arbiters of the law, many candidates often use not-so-subtle clues — such as saying they oppose “the overreach of government” or support “fairness, equality and respect” — to signal how they might rule.

“Judges are faced with an ethical challenge on the campaign trail where they are not allowed to talk about specific issues that might come before them on the bench, even though some voters would love to know what they are going to do,” said John Korzen, a professor at Wake Forest University School of Law in Winston-Salem, N.C. “One of the code words that judges on the right side of the spectrum may use is ‘conservative.’ … And it’s become kind of a buzzword for, I guess all sorts of things, and I think it would include being anti-abortion.”

Eight states — including North Carolina — require judges to run with their party affiliation next to their name on the ballot. But even when state supreme court races are ostensibly nonpartisan, political parties, unions and outside interest groups often take part in the campaign — especially when trying to remove an incumbent.

While most of the spending won’t happen until the fall, races in Ohio, Michigan and North Carolina — where abortion litigation is almost certain — are already garnering significant attention because partisan control is at stake.

In Ohio, both pro-and anti-abortion-rights groups are laying the groundwork for voter education campaigns around three key state Supreme Court elections. The state has a six-week abortion ban on the books that has been enjoined, and the legislature is expected to take up further restrictions when they reconvene after the August primary.

“The significance of this race for all kinds of issues, including choice, has escaped no one who is involved in the political scene in Ohio,” said Jessie Hill, a professor at Case Western Reserve University School of Law who has sued the state numerous times on behalf of abortion-rights supporters. “I fully expect there is going to be a ton of money poured into the races on both sides unlike anything we’ve seen.”

Michigan has a pre-Roe ban on abortion that has been temporarily blocked but will likely come before the Supreme Court under a petition from Democratic Gov. Gretchen Whitmer.

And North Carolina has an enjoined 20-week ban and a pre-Roe ban that could also come before the court, particularly in light of the stalemate between the state’s Democratic governor and Republican legislature.

In other states, like Montana, the outcome of the 2022 supreme court elections won’t change partisan control but could push the court to the right. And in Kansas, two judges that supported a 2019 court decision recognizing the right to abortion are up for a retention vote this year.

“It’s going to be a wake-up call for a lot of people about how important these courts are,” said Douglas Keith, counsel in the democracy program at the Brennan Center for Justice at NYU Law. “For many people, they’re just used to this being a question that would be decided by the U.S. Supreme Court but now it’s being decided by their state Supreme Court, and many people may be learning about these courts for the first time because of this fight to come.”

But some legal scholars fear the increased spending and growing partisanship will have a corrosive effect on the courts, which generally deal with much more mundane matters.

“The majority of what state supreme courts do, there's this little sliver that intersects with these hot-button political issues,” said Lumen Mulligan, professor at the University of Kansas School of Law. “What does this state statute mean? And you want that person to be nonpartisan. You don't want your ability to retain your farmland to depend on who donated more money to whom. Those things get lost in the shuffle of what state supreme courts really do."

Ten state supreme courts have already identified the right to abortion in their state constitution while voters in a handful of states, including West Virginia, Tennessee and Louisiana, have passed ballot measures to make explicit that their constitution does not protect the right to abortion. But in the majority of states the issue remains undecided.

Greer Donley, an assistant professor of law at the University of Pittsburgh Law School, said she believes there will “probably be a huge impulse to just recreate Roe on a state level.”

“Some courts might decide that the right to abortion is even more protective,” she said.

Take Kansas, where the state Supreme Court ruled in 2019 that a person’s decision to end their own pregnancy is a fundamental right under the state Constitution — exceeding the protections offered by Roe.

Opponents of abortion rights are now trying to undo those protections by amending the constitution to allow the legislature to pass laws that would restrict someone’s ability to terminate their pregnancy. They fear the state will become a haven for abortion access in the Midwest as neighboring states move to ban the procedure.

The constitutional amendment — a backlash to the Kansas Supreme Court ruling — is on the August ballot and is expected to be the first test of voters’ attitudes toward abortion if Roe is overturned. It also represents the best chance for abortion opponents to change public policy in the state without a significant change to the makeup of the court.

Six Supreme Court justices also face retention elections this year in Kansas — meaning voters will vote on whether the judges should stay on the court. Five were appointed by Democratic governors and two supported the 2019 ruling. Danielle Underwood, spokesperson for Kansans for Life, said her organization is focused on the ballot measure campaign for now but will look at repeating their past efforts to vote judges off the Supreme Court.

Legal scholars say Kansas demonstrates both the power and vulnerability of state supreme courts and foreshadows what could come in other states, with justices potentially targeted politically for unpopular decisions on abortion and other issues.

In Ohio, conservatives hold a 4-3 majority on the state Supreme Court, though the court’s moderate chief justice has sided with Democrats on recent redistricting cases. But the court’s future partisan balance depends on the outcome of the November election — where, starting this year, judges will be identified on the ballot by party.

While Ohio Right to Life has endorsed in previous state Supreme Court races, Gonidakis said his organization plans to empty its campaign war chest as it continues to raise money this year. The group also plans to spend the summer knocking on doors, sending mailers and attempting to persuade people through social media campaigns.

On the other side, Pro-Choice Ohio is planning to educate voters on the importance of this year’s Supreme Court election, which will likely have a significant impact on the future of abortion policy in the state.

“These battles are most immediately going to be fought out in state court, and so people need to understand why that is and who these people are,” said Kellie Copeland, executive director of Pro-Choice Ohio.

In Michigan, much of the focus is, for now, on the state’s Aug. 2 primary election, as well as a ballot measure pro-abortion-rights groups are circulating that could codify the right to abortion in the state’s constitution. But Whitmer is also asking the Michigan Supreme Court to rule on whether the state’s 91-year-old abortion ban is constitutional, a decision that could hinge on the outcome of the election.

Michigan’s Supreme Court has a 4-3 liberal majority, with one liberal and one conservative justice up for reelection. While Justin Long, a professor at Wayne State University Law School in Detroit, said it’s “extremely rare” for an incumbent to lose, more than $10 million was spent on the state’s Supreme Court elections in 2020, including more than $6 million spent by outside groups, according to the Brennan Center.

And in North Carolina — where nearly $10.5 million was spent on the Supreme Court election in 2020 — the court has a 4-3 liberal majority that hangs in the balance this year. If the two Democratic judges running for reelection lose, their party won’t have an opportunity to take control of the court back until 2028 — and they could lose the governor’s mansion before then, with Democratic Gov. Roy Cooper term-limited and leaving office in 2025.

“North Carolina could be a place that has abortion access after Roe falls, but we don’t know for how long,” said Tara Romano, executive director of Pro-Choice North Carolina.

While Republicans have historically been more vocal about the importance of appointing conservative justices, Democrats have often focused their attention on “judicial fairness.” Court observers believe that’s starting to change.

“If this actually gets the left to pay more attention and engage and invest in these races in the way that the right has for the past three decades, then it should benefit progressive candidates more than conservative candidates,” said Jake Faleschini, senior state courts counsel at the Alliance for Justice Action Campaign. “It's great that more folks are starting to pay attention to these crucial races. I worry that it's a little ‘too little, too late,’ but hope for all our sakes that we can sprint to catch up.”