Next Frontline in the Abortion Wars: State Supreme Courts

WASHINGTON — Fresh out of the political undergrowth of the United States Supreme Court, the abortion battle is now moving to locations poised to become the next frontline in the country’s partisan warfare: the state’s highest courts.

In Florida, seven judges appointed by Republican governors will decide whether the state constitution’s explicit right to privacy, which protected abortion rights in previous rulings, remains a precedent. In Michigan, a court with a 4-3 majority of Democratic nominees has been asked to decide whether a 91-year-old law banning abortions is constitutional. In Kentucky, a decision to ban nearly all abortions appears to be tied to a Supreme Court composed largely of unbiased elected judges.

In those states and others, Roe v. Wade’s federal turnaround throws one of the nation’s most politically explosive issues into courtrooms that until recently had largely operated under the radar of national politics.

Increasing political pressure on judges — and the right-wing drift of some courts — suggests that the options for abortion rights advocates to mitigate the impact of the federal abortion ruling may be limited. It also reflects how partisan politics is evolving as a driving force behind the way some judges rule.

Over the past decade, the national Republican Party and other conservative groups have spent a lot of money moving both state legislators and the courts to the right. The party’s Judicial Fairness Initiative says it has spent more than $21 million since its… formation in 2014 to elect conservatives to state courts, and will spend more than $5 million this year. The Judicial Crisis Network, a conservative advocacy group that has been one of the main pillars of recent Republican candidates for the U.S. Supreme Court, has also invested money in races for the state’s Supreme Court.

The Democratic Party has also poured more and more money into court elections, as have allies like unions, but not as much and not as long as the Republicans. But the right-wing swing of federal courts is increasingly leading progressives to see state courts as potential bulwarks against more conservative gains, said Joshua A. Douglas, an election and voting law scholar at the University of Kentucky.

According to Douglas Keith, an expert on constitutional issues at the Brennan Center for Justice at New York University, the focus of the right on the courts could pay off well in legal battles over abortion.

Mrs. Reynolds, a Republican, turned the court into a conservative bastion. Last month, a week before the U.S. Supreme Court overturned its Roe v. Wade ruling, Iowa judges reversed their own statement from 2018 about abortion.

Montana also recognizes a constitutional right to abortion. In last month’s impartial primaries for one of the seven Supreme Court seats, both the Judicial Fairness Initiative and the Republican state party money spent to make sure that a candidate backed by abortion opponents, James Brown, would oppose sitting judge Ingrid Gustafson in November. Ms Gustafson was nominated in 2017 by the then governor, Steve Bullock, a Democrat.

The reversal of abortion rights in Iowa “isn’t the last we could see,” said Mr. Keith. “The lack of attention that these courts have received relatively from the left will come home to sleep.”

A major test looms in Florida, where the state constitution’s Bill of Rights declares that “every natural person has the right to be left alone and free from government interference in the person’s private life.”

The Florida Supreme Court previously cited that explicit guarantee of privacy when it repealed laws restricting access to abortion. That precedent now seems threatened.

In 2019, the last three judges nominated by a Democratic governor retired. Governor Ron DeSantis, a Republican who has made the opposition to abortion the centerpiece of a potential presidential campaign, replaced them with conservatives.

From voting rights to reclassification, the state’s Supreme Court has reliably ruled in support of conservatives in recent years. Daniel A. Smith, a University of Florida political scientist who watches the court, said he thought this probably wouldn’t change.

“I think the U.S. Supreme Court is sending a signal to the judges in the state’s highest courts that precedent no longer matters,” he said. dr. Smith predicted that the constitutional guarantee of privacy “will be wiped out” when the state court makes its abortion decision.

Kentucky Attorney General Daniel Cameron, a Republican, on Sunday asked the state’s Supreme Court to issue an emergency injunction to suspend a lower court decision, allowing the state’s sole abortion provider to remain open . The court rejected the request on Tuesday.

In the state’s Supreme Court election this fall, State Representative Joseph Fischer, arguably the leader of the legislature, opponent of abortionis running to evict Michelle M. Keller, who was appointed to court in 2013 by Steve Beshear, a Democrat who was then governor.

National political parties and advocacy groups will turn their money and attention this fall to the state’s highest courts in four states — Illinois, Michigan, North Carolina and Ohio — where elections could flip the majority of courts from Democratic to Republican or vice versa. . But there may also be other states at play.

Six of the seven justices on the Democrat-led Kansas Supreme Court are slated to run for retention elections, and some are likely to be targeted by Republicans outraged over court ruling in 2019 that abortion is a constitutional right. Arkansas Republicans are support a former president of the state party against a Democratic sitting judge in an effort to remove the remaining moderates from the already conservative court.

More than abortion, the focus on state courts reflects the politics of reclassification, particularly after a 2019 U.S. Supreme Court ruling that left the oversight of partisan gerrymanders to state legislators and courts. National Republicans say changing the state’s highest courts is the only way to prevent Democrats from coming to power by successfully filing a lawsuit to overturn gerrymanded Republican political cards, a strategy they mock call it ‘charge till it’s blue’.

“If Republicans and conservatives want to control the reclassification process, it is not enough to take control of the state legislature. You also have to control the highest courts,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee.

Kelly Burton, chair of the National Democratic Redistricting Committee, which has backed many of those lawsuits, said the fight was more about stopping a creeping autocracy than changing political boundaries.

“It’s about voting rights,” she said. “It’s about fights about access to abortion. And essentially, we’re trying to protect these courts as neutral arbitrators, while the Republicans want to make them less independent and more partisan.”

Some judges say they feel in the middle as partisan pressure mounts.

Maureen O’Connora Republican who serves as chief justice of the Ohio Supreme Court was threatened with impeachment by some in her party this spring after she voted with Democratic judges to destroy political maps rrymanded by Republicans.

For some people, she said, her voice on reclassification shows “integrity and independence and respect for the rule of law and the constitution. To others I am a traitor.”

Nathan Hecht, the chief justice of the all-Republican Supreme Court of Texas, has campaigned for years to scrap the system of partisan elections for judicial positions. “Texas has one of the dumbest systems in the world,” he said, worrying that growing partisanship will make it worse.

Still, he said he thought there’s a good chance that if divisive issues like abortion “pass to the states, the states will find ways to reach a middle ground that federal lawmakers have been unable to find.” But he added: “I’m not going to bet on that.”

On Friday, the Texas court lifted a freeze on a 1925 law that bans abortions and offers the prospect of jail time for those who give them. A full hearing on the law will be held later.

Sheelagh McNeill research contributed.