By Nate Raymond
(Reuters) – Elections for seats on state supreme courts that once drew little attention have become prominent abortion battlegrounds since the U.S. Supreme Court’s 2022 decision reversing its landmark Roe v. Wade ruling that legalized the procedure nationwide.
That ruling essentially moved the fight over reproductive rights to the states, clearing the way for 13 conservative states to ban abortion and legislatures in others to severely restrict it. It also prompted voters in four states to approve initiatives enshrining abortion rights in state constitutions, with similar measures on ballots in 10 states this year.
State supreme courts have the final word on interpreting state constitutions and new constitutional amendments, significantly raising the stakes for elections to their benches – something that in the past drew far less attention and fewer voters than presidential and other races higher on the ballot.
Advocates on both sides of the abortion issue are targeting judicial races in Michigan and Ohio, two of the 33 states nationwide in which supreme court seats are on the ballot in the Nov. 5 election either through competitive elections or votes to retain appointed jurists.
Advocacy groups are also pouring money into races in states including Montana and North Carolina, where both parties are laying the groundwork for future electoral battles to tilt the courts’ makeup, and Arizona, where two Republican-appointed justices who upheld a 1864 abortion ban hope to retain their seats.
“As the U.S. Supreme Court continues to undo federal protections, state supreme courts are going to get more and more on lots of groups’ radars,” said Deirdre Schifeling, the American Civil Liberties Union’s chief political and advocacy officer.
Her group, which has been litigating against state abortion restrictions, has sunk $5.4 million into elections in Michigan, Ohio, North Carolina and Montana to tell voters which judicial candidates support abortion and civil rights.
Planned Parenthood Votes, the political arm of the reproductive healthcare and abortion rights group, and the National Democratic Redistricting Committee jointly committed in May to spending at least $5 million on state supreme court races in those four states plus Kentucky and Arizona.
Conservatives are spending millions of dollars countering those efforts, with the Republican State Leadership Committee’s Judicial Fairness Initiative targeting judicial elections in Michigan, Ohio, Montana, North Carolina, Arizona and Texas.
In Montana, where the state’s high court ruled in 1999 that the state constitution protects abortion rights, Republicans are throwing their support behind two candidates, Cory Swanson and Dan Wilson, whose opponents, Jerry Lynch and Katherine Bidegaray, say they agree with the abortion ruling’s reasoning.
IDEOLOGICAL BALANCE AT STAKE
The 2024 contests come a year after record-breaking spending in recent state supreme court races in Pennsylvania and Wisconsin, where the focus on abortion rights helped fuel Democratic victories. Liberal Janet Protasiewicz won a seat on the Wisconsin Supreme Court in the most expensive state supreme court race ever, costing more than $50 million.
In Ohio, six candidates are vying for three seats on the state’s supreme court, with Democrats seizing on abortion rights to try to retain two seats they currently hold and claim a third in an open contest. Should they do so, they would flip the ideological balance of a court that currently has a 4-3 Republican majority.
“Extremist judges put Ohio at risk, threatening our freedom and access to abortion,” the narrator in a television ad sponsored by Democratic incumbent Justices Michael Donnelly and Melody Stewart and Democratic candidate Lisa Forbes says.
They are campaigning on the issue even after Ohio voters last year approved a constitutional amendment guaranteeing abortion rights. Ohio’s Republican state attorney general post-amendment is still defending abortion restrictions in court.
In Michigan, where voters also enshrined the right to abortion into their state constitution, two seats are in play in an election that is nonpartisan, but whose candidates are nominated by the Democratic and Republican parties.
Currently those backed by Democrats have a 4-3 majority on the court. The Democratic candidates, incumbent Justice Kyra Harris Bolden and University of Michigan law professor Kimberly Ann Thomas, are significantly outspending Republican rivals Patrick William O’Grady and Andrew Fink, according to campaign finance reports.
SPEAKING ABOUT ‘VALUES’
Douglas Keith, a senior counsel at the Brennan Center for Justice who tracks judicial elections, said campaigning by candidates on partisan issues, including abortion rights, marks a change from how would-be justices in the past “would talk about how they believed in fairness and justice and family values, and that would be about it.”
Democratic North Carolina Justice Allison Riggs, a former civil rights lawyer, is among those talking about abortion as she vies for a full eight-year term following her 2023 appointment by the state’s Democratic governor to fill a vacancy created by another justice’s resignation.
Her opponent, North Carolina Court of Appeals Judge Jefferson Griffin, describes himself as “an originalist and a textualist,” referring to legal doctrines conservatives on the U.S. Supreme Court have relied upon in recent rulings expanding gun rights and curtailing the right to abortion.
Riggs said it’s important voters know her own “values” as Democrats fight to keep control of her seat so they can potentially regain a majority over the next two elections on a court that now has a 5-2 Republican majority.
“I’m not promising how I will vote, but I have a lived experience of what it means to control my own body and make my own healthcare decisions,” Riggs said.
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Deepa Babington)
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