State supreme court races becoming increasingly crucial in abortion rights battle

The races to fill these seats have become increasingly focused on abortion as the battle has shifted to the state level of government.

The next few years will see one courtroom battle after another as state judges interpret constitutional amendments to review whether existing bans and regulations violate them.

As many have said in the past few years, abortion is primarily an issue that plays out at the state level of government. As such, races for state supreme court spots have seen an infusion of cash from out-of-state organizations that want to advance or limit abortion rights. While the passage of a ballot initiative is the first step, the second will be legal challenges filed against the state to nullify the laws restricting abortion.

“This is where all the action is, right now,” said Penn State Professor Michael Nelson, co-author of Judging Inequality: State Supreme Courts and the Inequality Crisis.

“The US Supreme Court is going to be involved a little bit, but all of the action in terms of abortion access is really in these state races. And they really don't get the attention that they deserve.”

Antiabortion officeholders want constitutional amendments protecting abortion rights to be interpreted as narrowly as possible when it’s time to review the existing abortion laws under the new protections.

Conservative attorney generals and legal scholars have pointed to how abortion was adjudicated at the federal level when Roe was the law of the land. Even then, when it was guaranteed as a federal right, the Supreme Court would chip away at it and uphold restrictions and regulations that limited abortion rights and made it so expensive to operate that clinics went out of business. Why can’t state judges take the same approach now? That’s their rhetorical question.

“After the Supreme Court's decision in Dobbs, essentially the federal floor for abortion rights was wiped away, which means that it is up to state courts and their interpretation of their state constitutions what sort of protections there are for abortion in each state,” Nelson said.

As I wrote about last month, abortion workers in Ohio are waiting to see how a legal battle over a six-week ban will play out in a recently reshaped state court system, even with a constitutional amendment passed.

The Arkansas Supreme Court disqualified roughly 14,000 signatures collected by paid canvassers. Then, it decertified a ballot initiative, which meant that voters never got to decide whether they wanted to legalize abortion.

In Wyoming this week, Special Assistant Attorney General Jay Jerde filed a challenge to a decision made by a lower court to nullify an abortion ban.

Even in states where it’s legal, like Pennsylvania, the state judicial system will determine things like whether bans preventing Medicaid from paying for abortions are constitutional or not.

Other states that have abortion lawsuits pending include Wisconsin, South Carolina, North Dakota, and Missouri.

The political makeup and sensibilities of the courts matter. So does how the judges come to fill those seats. Governors and legislatures can appoint judges for a specific term, such as four or eight years. They may serve until 70 in states with an age limit. Other states may use the Missouri Plan, a merit system in which a committee of lawyers or experts convene to recommend judges to a governor, who then appoints one of the people from the list. Judges can also be selected through an election by popular vote, with some states listing the party affiliation and others not.

Each method has a benefit, but it means that they respond to different political pressures. If a politician fills those seats, the judges will react to what the politician wants. If it’s done through popular vote, public opinion will matter the most, Nelson said.

While courts may advance abortion rights because of constitutional amendments specifically addressing it, they may also find that abortion rights are protected under other aspects of its state constitution, including the right to privacy. The Roe v. Wade decision had been based on that right. The actual U.S. Constitution doesn’t mention abortion specifically. Supreme Court justices interpreted Roe based on the Griswold decision, establishing privacy as a fundamental right.

The recent litigation has focused on what the floor, or limit to regulating abortion, is for state lawmakers looking to do so The second wave of lawsuits will be like the case in Louisiana, which recently issued an arrest warrant for a doctor in New York. Shield laws that states have passed have not yet been deemed constitutional by the U.S. Supreme Court. Judges in that institution have defended extradition, which is enumerated in the Constitution as an obligation of governors. So, there is a conflict between extradition precedents and shield laws, which judges must adjudicate.

“It's a mess,” Nelson said.

The cost of these elections could continue to rise as these judicial seats play a more significant role in determining how expansive abortion rights are across the country.

“The races might become more expensive because abortion makes more people see the value of their state Supreme Court,” Nelson said. “And therefore, there's more attention to those races, which attracts more money.”