Law professor explains how state supreme courts matter even after ballot initiatives
Elections for judgeships could determine how far-reaching ballot initiative protects will go
The battle for abortion rights in states like Ohio or Arkansas doesn’t begin or end with the passage of a ballot initiative that would ostensibly protect them in the state constitution.
Even after one is passed, lawyers have to challenge antiabortion laws and bans in courts, and the state’s judges will have to weigh in on whether to strike the law down or not. In some instances, it may be clear-cut that the amendment precludes the attempt to limit abortion access. But in others, like with parental consent or other common efforts, they may be upheld.
Jessie Hill, a lawyer who argued a case, Preterm-Cleveland v. David Yost, before the Ohio Supreme Court, represents abortion providers challenging the state’s law.
“Now we have this new constitutional amendment that protects the right to reproductive freedom,” Hill said. “But that doesn't by itself make the laws go away or take them off the books or anything like that in Ohio.”
Some abortion providers can violate laws and then challenge them, but Hill said the safer course would be to preemptively challenge them in court so that they wouldn’t face any penalties if they lost the case.
So elections for state supreme court, like the one in Ohio that comes this November with three spots available, will be vitally important for abortion rights activists and leaders.
“This race in November is so high stakes because I think the future of this amendment in many ways depends on what happens with that election in November,” Hill said.
Of those up for grabs, Democrats hold two seats, and Republicans have one.
When the court does decide on abortion, some will have self-evident conclusions. The six-week ban will fall quickly, Hill said.
“Then there are others where the state might think that they have an argument that it should stay in place,” Hill said. “And so then the litigation will be a little more complicated and prolonged. And, those are areas where the Supreme Court court make a real difference.”
The Associated Press recently published an article about how state supreme court races were now a point of emphasis for political leaders. They had long been neglected, as had many state offices when Roe v. Wade was on the books.
In Ohio, they are in uncharted territory. An abortion rights amendment passed in what most political observers in the state and outside of it consider to be a red state.
“the importance of the courts and of the elections is all because we're in a state where the entire government is still hostile to abortion,” Hill said. “And so, yeah, you kind of need that extra step of going to court and enforcing your rights.”