Next frontline in the abortion wars: state supreme courts

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WASHINGTON – Fresh from the political jungle of the US Supreme Court, the abortion fight is now shifting to places poised to become the country’s next frontline in partisan warfare: the state supreme 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 candidates has been asked to decide whether a 91-year-old law banning abortion is constitutional. In Kentucky, a decision to ban almost all abortion appears to be tied to a Supreme Court composed largely of bipartisan elected judges.

In these and other states, the federal repeal of Roe v. Bringing one of the nation’s most politically sensitive issues into courtrooms, which until recently had largely operated under the radar of national politics.

Increasing political pressure on the judiciary — and a rightward swing in some courts — suggests that abortion advocates’ ability to mitigate the impact of the federal abortion ruling may be limited. It also reflects how partisan politics emerges as a driving force in the way some judges rule.

Over the past decade, the national Republican Party and other conservative groups have spent heavily to move both state legislatures and the courts to the right. The party’s Judicial Fairness Initiative said it has spent more than $21 million electing conservatives to state courts since its inception in 2014 and will spend more than $5 million this year. The Judicial Crisis Network, a conservative advocacy group that has been a key supporter of recent Republican nominees for the US Supreme Court, has also been investing money in the state Supreme Court races.

The Democratic Party, too, has poured growing sums into court elections, as have allies, such as the unions — but not as much and not as long as the Republicans. But the shift to the right in federal courts is increasingly leading progressives to see state courts as potential bulwarks against more conservative gains, said Joshua A. Douglas, elections and voting rights scholar at the University of Kentucky.

Focusing the right on the courts could pay dividends in abortion litigation, according to Douglas Keith, an expert on state law at New York University’s Brennan Center for Justice.

Consider Iowa, whose Supreme Court ruled in 2018 that the due process clause in the state constitution guarantees abortion rights. With the help of a publicity campaign funded by the Judicial Crisis Network, the General Assembly then overhauled the process of nominating the judiciary and gave Governor Kim Reynolds more control.

Reynolds, a Republican, turned the court into a conservative bastion. Last month, a week before the US Supreme Court delivered its decision in Roe v. Wade, the Iowa judges overturned their own 2018 abortion ruling.

Montana also recognizes a constitutional right to abortion. In last month’s bipartisan primaries for one of the seven Supreme Court seats, both the Judicial Fairness Initiative and the state-run Republican Party spent money to ensure that an anti-abortion-backed candidate, James Brown, won against an incumbent judge, Ingrid Gustafson , would compete in November. Gustafson was nominated for the bench in 2017 by then-Governor Steve Bullock, a Democrat.

Iowa’s repeal of abortion rights “isn’t the last we might see,” Keith said. “The lack of attention these courts have received comparatively from the left will retreat home.”

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 to be exempt from government interference with that person’s privacy.”

The Florida Supreme Court has previously cited this explicit guarantee of privacy when striking down laws restricting 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 centerpiece of a possible presidential campaign, replaced them with conservatives.

From voting rights to new constituency elections, the country’s Supreme Court has consistently ruled in favor of the Conservatives in recent years. Daniel A. Smith, a University of Florida political scientist who is observing the court, said he believes that is unlikely to change.

“I think the US Supreme Court is sending a signal to state Supreme Court justices that precedent no longer matters,” he said. Smith predicted that the constitutional guarantee of privacy will be “snipped away” when the state court makes its abortion decision.

Attorney General Daniel Cameron of Kentucky, a Republican, has asked the state Supreme Court to issue an emergency order staying a lower court decision allowing the state’s only abortion provider to remain open. In this fall’s Supreme Court election, State Representative Joseph Fischer, perhaps the legislature’s leading anti-abortionist, is running to unseat Michelle M. Keller, who was appointed to the court in 2013 by Steve Beshear, a then-Democrat the governor.

National political parties and advocacy 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 tip majority courts from Democrat to Republican or vice versa. But other states could also be involved.

Six out of seven justices on the Democrat-led Kansas Supreme Court must stand for retention elections, and some are likely to be targeted by Republicans angry at the court’s 2019 ruling that abortion is a constitutional right. Arkansas Republicans are backing a former state party leader against an incumbent Democratic judiciary to remove the remaining moderates from the already conservative court.

Even more than abortion, the focus on state courts has mirrored the politics of redistribution, particularly after a 2019 US Supreme Court ruling that left oversight of partisan gerrymander to state legislatures and courts. National Republicans say changing state supreme courts is the only way to prevent Democrats from taking power, successfully suing to overturn rigged Republican political maps, a strategy they scoffed at ” complain until it’s blue”.

“If Republicans and Conservatives want to control the redistribution process, it is not enough to gain control of the state legislature. They also need to control the supreme courts,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee.

Kelly Burton, president 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 borders.

“It’s about voting rights cases,” she said. “It’s about struggles for access to abortion. And basically what we’re trying to do is protect those courts as neutral arbiters while Republicans want to make them less independent and more partisan.”

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

Maureen O’Connor, a Republican who is the chief justice of the Ohio Supreme Court, was threatened with impeachment by some members of her party this spring after voting with Democratic judges to strike down Republican-rigged political maps.

For some people, she said, voting for the reallocation 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 end the state system of guerrilla judiciary elections. “Texas has one of the dumbest systems in the world,” he said, and he fears growing partisanship will make it worse.

Still, he said he thinks there’s a good chance that as divisive issues like abortion “spill over to the states, the states will find ways to find a middle ground that the federal legislature couldn’t find.” But, he added, “I’m not going to bet on that.”

On Friday, the Texas court overturned the freeze on a 1925 law that bans abortions and faces imprisonment for those who perform them. A full hearing on the bill will take place later.

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