WASHINGTON — Fresh out of the political thicket of the United States Supreme Court, the abortion fight is now moving to places poised to become the next front line in the country’s partisan warfare: state supreme courts.
In Florida, seven judges appointed by Republican governors will decide whether an express privacy right in the state constitution that protects abortion rights in previous decisions remains precedent. In Michigan, a 4-3 Democratic court was asked to rule on whether a 91-year-old law banning abortion was constitutional. In Kentucky, the decision to ban nearly all abortions appears tied to a Supreme Court made up mostly of nonpartisan elected justices.
In these states and others, the federal overturn of Roe v. Wade throws one of the nation’s most politically explosive issues into courtrooms that until recently operated mostly under the radar of national politics.
Increasing political pressure on the justices — and a shift to the right on some courts — suggests that options for abortion rights advocates to soften the impact of the federal abortion ruling may be limited. It also reflects how party politics has emerged as a driving force in how some judges rule.
Over the past decade, the national GOP and other conservative groups have spent heavily to move state legislatures and courts. The party’s Court Fairness Initiative says it has spent more than $21 million since its inception 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 a major backer of recent Republican nominations for the U.S. Supreme Court, has also invested money in state supreme court races.
The Democratic Party is also pouring increasing amounts of money into judicial elections, as well as allies like labor unions — but not as much and not for as long as Republicans. But the federal courts’ lurch to the right increasingly has progressives looking to state courts as a potential bulwark against more conservative gains, said Joshua A. Douglas, an election and voting rights scholar at the University of Kentucky.
The right’s focus on the courts could pay off handsomely in legal battles over abortion, according to Douglas Keith, an expert on state judicial issues at New York University’s Brennan Center for Justice.
Ms. Reynolds, a Republican, has turned the court into a conservative bastion. Last month, a week before the US Supreme Court overturned its decision in Roe v. Wade, Iowa justices overturned their own 2018 decision on abortion.
Montana also recognizes the constitutional right to abortion. In last month’s nonpartisan primary for one of seven seats on the Supreme Court, both the Judicial Fairness Initiative and the state GOP spent money to ensure that a candidate backed by abortion opponents, James Brown, would challenge incumbent judge, Ingrid Gustafsson, in November. Ms. Gustafsson was nominated to the bench in 2017 by then-Governor Steve Bullock, a Democrat.
The repeal of abortion rights in Iowa “is not the last we may see,” Mr. Keith said. “The lack of attention these courts have received from the left will relatively come home to relax.”
From Opinion: The End of Roe v. Wade
Commentary by Times Opinion writers and columnists on the Supreme Court’s decision to end the constitutional right to abortion.
- David N. Hackney, a maternal-fetal medicine specialist: The end of Roe “is a tragedy for our patients, many of whom will suffer and some of whom may die.”
- Mara Gay: “Sex is fun. For puritanical tyrants who seek to control our bodies, this is a problem.
- Elizabeth Spiers: “The idea that rich women will get away with it no matter what the law says is probably comforting to some. But that’s just not true.”
- Kathryn Stewart, writer: “The breakdown of American democracy is not an unwanted side effect of Christian nationalism. That is the point of the project.”
A big test looms in Florida, where the state’s Bill of Rights states that “every individual has the right to be left alone and free from governmental interference with the privacy of the individual.”
The Florida Supreme Court previously cited this express guarantee of privacy in striking down laws that restricted access to abortion. That precedent now appears to be in jeopardy.
In 2019, the last three judges nominated by a Democratic governor retired. Gov. Ron DeSantis, a Republican who has made opposition to abortion the focus of a possible presidential campaign, replaced them with conservatives.
From voting rights to redistricting, the state Supreme Court has ruled reliably in favor of conservatives in recent years. Daniel A. Smith, a political scientist at the University of Florida who monitors the court, said he thinks that is unlikely to change.
“I think the U.S. Supreme Court is sending a signal to state high court judges that precedent no longer matters,” he said. Dr. Smith predicted that the constitutional guarantee of privacy “will be gutted” when the state court rules on abortion.
Attorney General Daniel Cameron of Kentucky, a Republican, on Sunday asked the state Supreme Court to issue an emergency order halting a lower court ruling allowing the state’s only abortion provider to remain open. The court rejected the request on Tuesday.
In this fall’s state Supreme Court election, state Rep. Joseph Fischer, perhaps the leading abortion opponent in the Legislature, is running to unseat Michelle M. Keller, who was appointed to the court in 2013 by Steve Bescher, a Democrat , who was then Governor.
National political parties and interest groups will focus their money and attention this fall on state supreme courts in four states — Illinois, Michigan, North Carolina and Ohio — where elections could swing court majorities from Democrats to Republicans or vice versa. But other countries may be in the game.
Six of seven justices on the Democratic-led Kansas Supreme Court are up for re-election, and some are likely to be targeted by Republicans angered by the court’s 2019 ruling that abortion is a constitutional right. Arkansas Republicans are backing a former state party chairman against a sitting Democratic justice in an effort to wipe out remaining moderates from an already conservative court.
Even more than abortion, the focus on state courts reflects the politics of redistricting, especially after a 2019 U.S. Supreme Court decision that left oversight to state legislatures and courts to partisan manipulators. National Republicans say changing state supreme courts is the only way to prevent Democrats from gaining power by successfully filing lawsuits to overturn fraudulent Republican political maps, a strategy they mockingly call “judge until blue.”
“If Republicans and conservatives want to control the redistricting process, then winning control of state legislatures is not enough. You also have to control the supreme courts,” said Andrew Romeo, spokesman for the Republican State Leadership Committee.
Kelly Burton, president of the National Democratic Redistricting Committee, which has supported many of these cases, said the fight is more about stopping a creeping autocracy than changing political boundaries.
“It’s about voting rights cases,” she said. “It’s about battles for access to abortion. And basically, we’re trying to protect these courts as neutral arbiters, while Republicans want to make them less independent and more partisan.
Some justices say they feel caught in the middle as partisan pressure mounts.
Maureen O’Connor, a Republican who is the chief justice of the Ohio Supreme Court, was threatened with impeachment by some in her party this spring after she voted with Democratic justices to overturn Republican-rigged political maps.
For some people, she said, her redistricting vote “shows integrity and independence and respect for the rule of law and the constitution. To others I am a traitor.
Nathan Hecht, chief justice of the all-Republican Texas Supreme Court, has campaigned for years to eliminate the state’s system of partisan elections for judicial office. “Texas has one of the stupidest systems in the world,” he said, and he worries that growing bias will make it worse.
Still, he said he thinks there’s a good chance that as divisive issues like abortion “devolve to the states, the states will find ways to strike a middle ground that federal lawmakers haven’t been able to find.” But he added: “I wouldn’t bet on it.”
A Texas court on Friday lifted a freeze on a 1925 law that banned abortions and provided for prison terms for those who perform them. A full hearing on the law will be held at a later date.
Sheelagh McNeill contributed research.
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