Battle over abortion access stretches to state supreme court races

Washington — As abortion continues to be a focal point of Democrats’ campaigns for Congress and Vice President Kamala Harris’ bid for the White House, the issue has also taken on a prominent role in state supreme court races as judges are tasked with determining access.

Voters in at least 30 states will decide who will fill 69 state supreme court seats in judicial elections, with the ideological balances of two high courts — in Michigan and Ohio — at stake. In both of those states and several others, including North Carolina, Kentucky and Montana, state high courts have decided high-profile cases and could see their compositions shift in November.

In anticipation of the roles they’ll play, advocacy organizations are spending big on state supreme court elections this year. Planned Parenthood Votes and the National Democratic Redistricting Committee committed to investing at least $5 million on state supreme court races this cycle, and Planned Parenthood Votes is spending $2 million in Montana specifically.

The Montana Supreme Court has ruled that the state constitution recognizes the right to abortion, but a change in its makeup could lead to a reversal of that decision. Voters will cast ballots to fill the seats of two retiring justices, who were backed by Democrats.

The ACLU of Michigan is investing $2 million in the state’s supreme court races, where two seats are on the ballot, and the group is also focusing on Montana and Ohio’s judicial contests through its Voter Education Fund.

On the other side, the Republican State Leadership Committee and Fair Courts America, a PAC tied to GOP donor Richard Uihlein, are targeting judicial elections in many of the same states with the goal of electing conservative judges.

“The front lines of the battle”

The heightened focus — and spending — on these races arose after the U.S. Supreme Court’s June 2022 decision overturning Roe v. Wade, which cleared the way for states to enact their own laws restricting access to or protecting abortion. Twenty-three states have curtailed abortion access since Roe’s reversal and 14 of those have put in place near-total bans with limited exceptions.

As a result, state judges have been tasked with interpreting those laws and just how far their exceptions go. Voters in seven states have also weighed in on abortion rights directly through ballot measures, and access is on the ballot in 10 more states in November.

While the pro-abortion rights position has succeeded in all seven states so far, state courts are hearing disputes over the language of the approved constitutional amendments, with more likely on the horizon after next month’s contests.

“When there are abortion measures on the ballot, voters go to vote and enshrine abortion into the state constitution and they may think, our job is done. That right is protected,” said Douglas Keith, senior counsel at the Brennan Center for Justice. “But as we’ve seen, any constitutional amendment is still going to have boundaries that are being interpreted by courts. What court is going to be interpreting that newly passed amendment can be really significant in determining what that right consists of.”

Litigation following the adoption of a state constitutional amendment is already underway in Ohio, where voters in 2023 approved Issue 1, a constitutional amendment that established the right to abortion. In the first ruling on the merits of the measure, a county judge in August blocked laws requiring a 24-hour waiting period for abortions. The state is appealing the decision.

Republicans currently have a 4-3 majority on the Ohio Supreme Court, and three sitting justices are on the ballot. If Democratic candidates win all three seats, control of the court would flip. But if Republicans are victorious in all three races, the party would expand its majority to 6-1.

“In a post-Roe v. Wade environment, there’s a high-profile issue that is being decided in various kinds of ways at the state level, and state supreme courts can be an important part of that,” said Kyle Kondik, an election analyst at the University of Virginia.

State supreme courts have the final word on questions of state law. Before the nation’s highest court unwound the constitutional right to abortion, outside groups largely focused on state judicial races because of the role those courts play in redistricting disputes. The nation’s high court in 2019 closed the doors of federal courts to cases involving partisan gerrymandering, leaving the states as the final adjudicators of legal battles over district lines drawn to entrench the party in power.

But the attention paid to these races rose significantly in the summer of 2022 as the issue was returned to states.

“We always had Roe to fall back on at the federal level, so we didn’t have state supreme courts playing as big of a role in people’s access to abortion care,” Katie Rodihan, a spokesperson for Planned Parenthood Votes, told CBS News. “Now they’re the front lines of the battle.”

The first two state supreme court elections held after Roe was overturned were the most expensive, Keith said. In Wisconsin, the April 2023 race for a single supreme court seat saw $51 million in total spending. In Pennsylvania, at least $22 million was spent in its November 2023 race, according to a Brennan Center analysis.

During the 2021-2022 election cycle, stakeholders spent more than $100 million on state supreme court elections, the Brennan Center found, $45.7 million of which came from outside interest groups.

“It is a new era in terms of the attention on these races,” Keith said. 

Twenty-two states hold elections for members of their supreme courts, and 14 of those races are nonpartisan. In the remaining eight, candidates are listed with political affiliation.

In Ohio, the inclusion of party labels started in 2022 after state GOP lawmakers approved legislation to list certain judicial candidates’ political affiliations.

The heightened attention on these races can lead to judicial elections — and the decisions coming out of the state supreme courts — becoming more partisan, which threatens to blur the distinctions between these contests and others for the state legislature or federal office.

“It’s harder for the public to be confident their judges aren’t partisan in the way every other elected official in the state is,” Keith said. “That trust that judges are different deteriorates as these elections stop looking different and look like every other statewide election.”

But Keith said for nonpartisan races, the last election cycle showed that “when voters are not bound by their party loyalty, when party labels aren’t on the ballot, they’re expressing this idea that they don’t want judges to be like any other elected official.”

Still, it’s unlikely the emphasis on state supreme court elections will dim: Rodihan, of Planned Parenthood votes, said this won’t be the last election cycle where the group is focused on these races.

“It’s going to be critical for us to make these investments going forward,” she said. “There’s no doubt in our minds that state supreme courts will be battleground races.”