State judicial elections take on new importance with Roe in peril

Battles to control state courts and offices are quickly gaining greater focus with the Supreme Court appearing poised to overturn its landmark 1973 Roe v. Wade decision on abortion rights.

Roe’s impending demise has already raised the stakes for some down ballot races, with state court judges and attorneys general expected to take on expanded roles in the fight over abortion access if the Supreme Court eliminates the federal right in coming weeks. 

Battles for some of those offices have already grown more heated in the last decade, but they are expected to gain further attention as bitter battles over abortion rights take place across the country.

“In states where judges are elected, state supreme court elections have long flown under the radar, and at least attracted much less attention than elections for governor or U.S. Senate,” said Douglas Keith, counsel at the Brennan Center’s Democracy Program. “But all of that may be poised to change if these courts increasingly have the final word on high-profile legal questions.”

A leaked draft opinion striking down Roe, authored by Justice Samuel Alito and reportedly backed by at least four other conservative justices, would strip away the constitutional right to abortion, leaving regulatory authority with the states. 

Abortion rights advocates incensed at the draft opinion also fumed over the Biden administration’s seeming lack of preparation for such a scenario, despite widespread consensus about Roe’s jeopardized status under the Supreme Court’s conservative majority. And a failed bid by Senate Democrats last week on long-shot legislation to codify Roe’s protections seemed to further underscore the absence of a federal backstop if the ruling is struck down.

The Supreme Court confirmed the authenticity of the draft opinion, published by Politico on May 2, while cautioning that the ruling’s contents and the justices’ votes were subject to change prior to the publication of a final decision. 

But if the draft opinion becomes law, changes to abortion access in some states would be swift and, in some cases, drastic. The case under review, Dobbs v. Jackson Women’s Health Organization, concerns Mississippi’s 15-week abortion ban that directly challenges Roe’s prohibition on banning abortion before fetal viability, around 24 weeks. 

According to the abortion rights advocacy group Guttmacher Institute, 26 states would be certain to attempt to ban abortion as quickly as possible. Among those, 13 have trigger laws already in place, designed to take effect automatically or by quick state action if Roe no longer applies. 

If Roe is overturned, court watchers say, the battle would then turn to state constitutions and state courthouses, arenas which have been largely eclipsed by the existence of a federal constitutional right to abortion that has been repeatedly reaffirmed by the Supreme Court since 1973. 

“With the Supreme Court on the verge of taking the entire federal judiciary out of the business of protecting reproductive rights, most of the important legal brawls will occur in state courts and state houses,” said Robert Tsai, a law professor at Boston University.

In some states, the leaked draft has generated legislative momentum on both sides of the aisle over the issue of abortion access, with conservatives pushing to stiffen restrictions and liberals seeking to bolster protections in anticipation of Roe’s possible undoing.  

Republican officials in at least eight states have called for legislative sessions to consider new limits on abortion since Alito’s draft opinion was made public earlier this month, according to the polling and research firm Pew.

Meanwhile, some Democratic-controlled legislatures have moved in the opposite direction.

“States like Connecticut and California are drafting laws to protect providers performing legal abortions in their states and to protect and support patients that travel to their states,” said Rachel Rebouché, a law professor at Temple University School of Law. “Those measures will become increasing important if states, like Missouri, attempt to enforce anti-abortion policies across state lines.” 

In addition to legislation, new attention is likely to be paid to state constitutions, a source of legal authority that has been largely overlooked since the 1973 decision in Roe. 

A number of top state courts have interpreted the state constitution as enshrining a right to abortion. These include Kansas (2019), Iowa (2018), Montana (1999), Alaska (1997) and Florida (1989). If Roe is struck down in coming weeks, citizens of those states would still retain a right to abortion, and experts expect advocates in other states to adopt this strategy.

A Michigan judge on Tuesday agreed to temporarily halt a 1931 criminal ban on abortion that would become enforceable if Roe fell. The judge also said there was “a strong likelihood that the plaintiffs will prevail on the merits of their constitutional challenge.”

But as advocates seek to enshrine state constitutional protections, efforts by abortion opponents are also underway in at least two of those states to have their state supreme court’s interpretation struck down. 

In Montana, for instance, the state’s Republican attorney general has asked the state Supreme Court to overturn its 23-year-old decision that held that the state constitution’s privacy protections encompass abortion — a ruling some advocates refer to as “Montana’s Roe v. Wade.”

As a sign of just how critical the attorney general role could be in a post-Roe world, the Democratic Attorneys General Association, in a memo written after the Supreme Court leak, said it would spend up to $30 million on candidates who would protect abortion rights.

In Kansas, a ballot initiative would effectively overrule its top court’s ruling by amending the state constitution. The Kansas Supreme Court’s recognition in 2019 of a state-constitutional right to abortion is also likely to figure as a flashpoint in the midterm elections, when a majority of its justices are up for election.  

“It is hard to overstate how important state courts and state constitutions are about to be,” said Keith, of the Brennan Center. “If, as the Dobbs draft suggests, the U.S. Supreme Court is abdicating its responsibility to protect constitutional rights like abortion access, people are going to look to other courts and other bodies of law to step in.”