Pennsylvania court race puts abortion, elections center stage

Voters in the Keystone State will be heading to the polls next month to weigh in on a vacant Pennsylvania Supreme Court seat that could put Republicans one step closer to retaking the high court’s majority.

Republican Carolyn Carluccio and Democrat Dan McCaffery are vying for an open seat on the state Supreme Court after Chief Justice Max Baer, a Democrat, died last year. With Baer on the bench, Democrats had a 5-2 majority, which his death slimmed to a 4-2 edge. 

Though the Nov. 7 election will not immediately threaten Democrats’ hold on the state Supreme Court, a Republican win could pave the way for the GOP to flip the high court in the years to come in a critical battleground state, which has been at the center of key issues such as the contestation of election results and Medicaid coverage of abortion.

“The fight for our democracy isn’t one and done,” said Heather Williams, interim president of the Democratic Legislative Campaign Committee (DLCC), which told The Hill that it was spending six figures in the state Supreme Court race. 

“It is absolutely critical that every elected official is 100 percent upholding the standards of our democracy and in certifying a clear election, and is ensuring that people have access to the ballot box,” she added. 

Carluccio and McCaffery won their respective primaries in May for the chance to go head-to-head in the November general election. Carluccio notably won her primary against fellow Republican Patricia McCullough, who touted having briefly stopped the certification of President Biden’s 2020 win in Pennsylvania before that decision was rejected by the Pennsylvania Supreme Court.

The importance of statewide judicial elections has come into sharper focus in recent years, in light of the U.S. Supreme Court’s decision to overturn Roe v. Wade and due to failed attempts after the 2020 election to overturn the election results. 

Pennsylvania was among a handful of swing states where Republicans sought to overturn the 2020 election. Those challenges were ultimately rejected by the state’s high court. And though abortion is legal in the state up until 24 weeks, the Pennsylvania Supreme Court is currently weighing a case over Medicaid coverage for abortion. 

“The Republicans in Pennsylvania have never been shy about their desire to ban abortion and restrict abortion rights as much as possible,” said Brendan Welch, a former spokesman for the state Democratic Party who previously worked on McCaffery’s campaign but is no longer involved. 

“And all it takes is one slip where we lose control of the Supreme Court, the governor’s mansion or the bodies of the Legislature, and it’s over,” he continued.

During the race, Carluccio’s campaign has noted her “conservative values” and endorsement from the state GOP. But the president judge on the Montgomery County Court of Common Pleas has also sought to stress bipartisanship in ads and a guest editorial she wrote on PennLive.com. 

“I have not jeopardized my morals, my ethics, my — for anything, for any endorsement, for anything. I’ve been consistent. I’ve never pandered to a special interest group to get an endorsement, and I don’t plan on doing that,” Carluccio told The Hill in an interview. 

Ahead of her May primary, the Republican State Leadership Committee’s (RSLC) Judicial Fairness Initiative sought to play up Carluccio’s credentials on crime.

Democrats have sought to go on offense against her, particularly on the issue of abortion; Planned Parenthood Votes rolled out a six-figure digital ad campaign in mid-August targeting the Republican judge on the issue. The ad cited reporting from The Keystone in May that found that a line from her website describing her as “Defender of 2nd Amendment Rights and All Life Under the Law” had been removed from her campaign website.

Carluccio, who’s received the backing of several anti-abortion groups in the state, argued during an editorial board interview with CNHI Pennsylvania newspapers published last month that there was “no scrubbing involved,” noting that her website had been updated and reconfigured and that a former consultant to her campaign had made that biography. 

“Of course, the opposition is making an issue because in the past it’s won in other places, but abortion is not an issue for this race. I think it’s fear-mongering, frankly,” Carluccio told The Hill. 

“I’ve consistently indicated that … I know the law in Pennsylvania is that a woman’s right to choose, a woman’s reproductive rights, are protected under Pennsylvania law, and I have no interest in taking that away. I will be applying that law. I’ve never said anything other than that,” she added.

She also called previous coverage of her stance on the state’s mail-in voting law — The Associated Press reported she said it was “very bad for our Commonwealth” — as “taken out of context,” telling The Hill that she made those comments after hearing from “volunteers who were shut out of the polling places” and in light of decisions by the state Supreme Court regarding mail-in ballots that were not dated.

“I think what’s important is everybody understands that mail-in ballots is the law, and …everybody should embrace it, and if they want their vote to count, use them. I’m encouraging people to use them,” Carluccio said. 

Meanwhile, McCaffery has touted his ties to the state Democratic Party in ads. The Superior Court judge is also the brother of former state Supreme Court Judge Seamus McCaffery, who left the high court in 2014 after he was caught sending pornographic content over email. 

McCaffery, like Carluccio, has sought to emphasize his experience, saying in one ad that “for three decades in the busiest courts in Pennsylvania, I’ve served as a judge, attorney and prosecutor.” 

McCaffery, who hasn’t shied away from talking about abortion on the campaign trail, told The Hill in an interview that Republicans were the ones making it an issue in the campaign, not Democrats.

“My opponent ran as a pro-life, pro-gun candidate, and then right after the … primary season’s over, she scrubbed all references to pro-life and pro-gun from her website,” McCaffery said. “I think that’s what really drove this discussion, because a lot of people saw that and they started asking questions about, why would you bring it up and actively campaign as a pro-life candidate, and then basically erase it from your platform and deny that it’s an issue.”

“So I think when you talk about us leaning into the issues, they created the issue, and now they’re not really comfortable with the backlash,” he added later. 

Asked to respond to criticism from his opponent, who has appeared to suggest that McCaffery was an “activist judge” and separate criticism from the Philadelphia Inquirer, who said that he was “more enmeshed in party politics,” McCaffery said: “There’s no Republican or Democratic way to decide a case. You decide the case based upon the facts of the case and you apply the law evenly, fairly and impartially, and that’s what I’ve done my entire career.”

Rob Brooks, a consultant for Carluccio’s campaign, said in a statement to The Hill that her website was changed before the primary, not after.

“Judge McCaffery is not telling the truth about Judge Carluccio’s website changes. The website was updated a month before the Primary, not after. As for her resume, Judge Carluccio will defend our constitutional rights and all life under the law,” Brooks said. 

“Under the law [it] is important to note in that statement, women’s reproductive rights are protected by Pennsylvania law. Judge Carluccio has made it clear she will uphold that law in numerous publications this year. I trust Judge McCaffery knows that as well,” he added.

The race is already being watched as a way to see which base will be able to turn out their voters in an off-year — but still critical — election. But other experts say much of that equation will be about the issue set. 

“My view is that the race is going to come down to, from an issue standpoint, it’s abortion vs. law and order,” said Republican strategist Keith Naughton.

This story was updated at 10:57 a.m.