In June 2022, the landmark Roe v. Wade decision, which previously recognized abortion rights as a constitutional right, was overturned by the US Supreme Court. The Court ruled that the issue of abortion rights should be handled by individual states. Since then, the elections for seats on state supreme courts, which previously received little attention, have become battlegrounds for the abortion rights issue.
This decision essentially paved the way for 13 conservative states to ban abortion and for other state legislative bodies to enact strict restrictions on abortion. It also led to voters in four states approving initiatives to incorporate abortion rights into state constitutions, with similar measures appearing on the ballots in ten states this year.
State supreme courts have the final say in interpreting state constitutions and new constitutional amendments, significantly increasing the importance of judicial elections. In the past, judicial elections have garnered much less attention and voter turnout compared to high-profile presidential and other elections.
Currently, both sides of the abortion debate are focusing on judicial elections in Michigan and Ohio. In these two states out of the 33 in the country, seats on the state supreme courts will be determined either through competitive elections or through retention elections where voters decide whether to retain appointed judges through voting.
Advocacy groups are also pouring funds into judicial elections in states like Montana and North Carolina. Both political parties are laying the groundwork for future elections to shift the partisan composition of the courts. In Arizona, two Republican-appointed judges support a 1864 abortion ban and seek to retain their seats.
Deirdre Schifeling, Chief Political and Advocacy Officer of the American Civil Liberties Union (ACLU), stated, “As the US Supreme Court continues to roll back federal protections [on abortion rights], state supreme courts are receiving increased attention from many groups.”
Her organization has been challenging abortion restrictions in various states and has invested $5.4 million in local elections in Michigan, Ohio, North Carolina, and Montana to inform voters about which judicial candidates support abortion and civil rights.
The political entity of reproductive health and abortion rights organization “Planned Parenthood Votes,” along with the National Democratic Redistricting Committee, pledged in May to spend at least $5 million on state supreme court elections in these four states as well as Kentucky and Arizona.
Meanwhile, conservative groups are spending millions to counter these efforts. The Judicial Fairness Initiative (JFI) of the Republican State Leadership Committee (RSLC) is focusing on judicial elections in Michigan, Ohio, Montana, North Carolina, Arizona, and Texas.
In Montana, the state’s supreme court ruled in 1999 to protect abortion rights in the state constitution. Republicans support candidates Cory Swanson and Dan Wilson, while their opponents Jerry Lynch and Katherine Bidegaray support abortion rulings.
In 2023, record spending was witnessed in state supreme court elections in Pennsylvania and Wisconsin, ultimately resulting in Democratic victories. In Wisconsin, liberal Janet Protasiewicz secured a seat in the state supreme court election, the most expensive in state history costing over $50 million.
In Ohio, six candidates are currently vying for three seats on the state’s supreme court. Democrats are seizing on the abortion rights issue to retain their two existing seats and target a third seat in the public campaign. If successful, they would break the current ideological balance in the court, where Republicans hold a 4-3 majority.
Democratic incumbent justices Michael Donnelly, Melody Stewart, and judicial candidate Lisa Forbes sponsored TV ads stating, “Extremist judges put Ohio at risk, threatening our freedoms and abortion rights.”
Ohio voters approved a state constitutional amendment protecting abortion rights last year, yet the issue remains a focal point in the current campaigns. Despite the amendment’s passage, Ohio’s Republican Attorney General is still defending abortion restrictions in court.
Michigan voters also incorporated abortion rights into the state constitution. The state’s two judicial seats will be filled in non-partisan elections but with candidates jointly nominated by the Democratic and Republican parties.
Currently, Democratic-backed candidates hold a majority with a 4-3 advantage. According to campaign finance reports, Democratic candidates – incumbent Justice Kyra Harris Bolden and University of Michigan Law professor Kimberly Ann Thomas – are leading their Republican opponents Patrick William O’Grady and Andrew Fink.
Douglas Keith, senior counsel at the Brennan Center for Justice tracking judicial elections, noted candidates are campaigning on abortion rights and other partisan issues, signaling a shift from past judicial candidates discussing beliefs in fairness, justice, and family values.
North Carolina’s Democratic judge Allison Riggs, formerly a civil rights lawyer and one of the judges discussing abortion, was appointed by the state’s Democratic governor in 2023 to fill a vacancy left by another judge’s resignation. She is currently competing for a full eight-year term.
Her opponent, North Carolina Court of Appeals judge Jefferson Griffin, describes himself as an originalist and textualist, adhering to legal principles relied upon by the conservative majority in recent Supreme Court decisions expanding gun rights and restricting abortion rights.
Riggs emphasized the importance of voters understanding her “values” in the Democratic efforts to retain her seat, potentially regaining the majority in the next two elections, as Republicans currently hold a 5-2 majority on the court.
Riggs stated, “I won’t commit to how I’ll vote, but I’ve had firsthand experiences and know what it means to control your body and make your own medical decisions.”