- State supreme court justices are the last line of defense for abortion rights in a post-Roe world.
- And a quarter of the US' state supreme court justices, 86, will be on the ballot in 2022.
- "We very well may be at an inflection point for state supreme courts," a Brennan Center expert told Insider.
The next big battle over abortion politics is your own backyard.
With the US Supreme Court overturning one of its most consequential decisions in modern history, the fight to ban and restrict abortion now moves to 50 different state supreme courts scattered across the country.
In a world in which Roe v. Wade is overruled, it is these state courts that often operate outside the national media spotlight that will have the last word on interpreting the right to abortion under each state's constitution.
These judges, who don't get lifetime appointments like US Supreme Court justices, except in Rhode Island, are the ones deciding whether to uphold or overturn slews of state-specific abortion bans and restrictions.
And a quarter of these justices' jobs are on the line in 2022.
In all, 86 state supreme court seats, out of 344 total in the nation, are on the ballot in November. Elections for state supreme court justices are now the most direct avenue for voters to shape abortion policy for a generation.
"We very well may be at an inflection point for state supreme courts," Douglas Keith, counsel at the Brennan Center who studies state courts, told Insider in March.
"You will see increased attention and potentially a totally new dynamic around state judicial elections as a result of the US Supreme Court pushing that issue to the states," Keith said of abortion.
The Supreme Court kicking abortion policy entirely into the laps of largely unknown state supreme justices will accelerate the already-skyrocketing amounts of outside spending and negative advertising in state supreme court races. And at least at the national level, Republicans are outgunning and outspending Democrats in those races.
The Supreme Court overturning Roe is also likely to fuel state legislatures to combine new abortion bans with efforts to manipulate their court systems in their favor through partisan interference with state courts and impeachment threats against judges who stand in their way. Louisiana lawmakers unveiled a new abortion ban that would impeach and remove judges who might rule against it, just days after Politico obtained and published a leaked draft opinion showing the court's majority primed to strike down Roe.
Already in 2022, state courts have played a crucial role in upholding abortion bans. In March, the Texas Supreme Court shut off all possible routes for plaintiffs in state court to challenge a strict "heartbeat" abortion ban, one of two in effect in the US that effectively bans the procedure after around six weeks of pregnancy.
Texas' bill, enacted last fall, outsources enforcement of the ban to private citizens in a novel legal structure that Oklahoma has since replicated with a bill that went into effect the day after the draft opinion leak.
And 23 states have laws on their books that would restrict abortion in a post-Roe world, according to the Guttmacher Institute. They include "trigger" laws that would ban abortion as soon as Roe is overturned, pre-Roe abortion bans that are currently unenforceable but could be put back into effect, post-Roe abortion bans that are currently blocked by courts, and amendments establishing no right to abortion under state constitutions.
Other states, like Florida, have abortion restrictions set to go into effect later this summer which are likely to be challenged in state courts too.
The end of Roe may not save Democrats in Congress. But it could make waves in state judicial races.
Democratic strategists are hoping that the Supreme Court gutting Roe will be a motivating factor boosting turnout in the 2022 midterms.
But the issue alone isn't guaranteed to save the party's chances of holding onto control of Congress. For starters, Democrats are already showing they have limited options to bolster abortion rights at the federal level, and President Joe Biden's unpopularity, as well as voters' dissatisfaction with the economy, are also anchors weighing the party down with just six months to go before Election Day.
All of those caveats aside, Democrats are also anticipating GOP-led state legislatures passing draconian abortion bans in a post-Roe world could turn elections for state-level officials like governors, attorneys general, local prosecutors, and state judges into even more red-hot political battlegrounds.
The stakes are already apparent in two key presidential battleground states where Republicans control both branches of the state legislatures: Ohio and North Carolina.
In both, partisan control of their state supreme courts is up for grabs in November. North Carolina now has two Democratic-controlled state supreme seats up for election. And in Ohio, which has a six-week abortion ban currently blocked in federal court, three state supreme court seats — including the position of chief justice — are on the ballot.
"I don't think [Republicans] understand how unpopular that's going to be among women voters, independents, Republican women in the suburbs," a Democratic campaign strategist in Ohio told Insider of the possibility of Roe being overturned. "They're not going to take that."
But Republicans could just as easily be mobilized to retain or flip control of key courts that are controlled by Democrats, like North Carolina's, or have upheld abortion rights under state constitutions, like Kansas' high court.
"We're going to see anti-choice groups focusing on these courts that have protected abortion rights at the state level, because that is the last barrier to criminalizing abortion," said Billy Corriher, a writer and author of "Usurpers: How Voters Stopped the GOP Takeover of North Carolina's Courts."
Abortion could especially motivate conservatives to oust supreme court justices in order to reshape the court in Kansas, the site of an ongoing tug-of-war between anti-abortion groups and the Kansas Supreme Court.
In August, voters will decide whether to pass a constitutional amendment establishing no right to abortion in the state constitution, reversing a 2019 ruling from the state supreme court finding a right to abortion in the Kansas Bill of Rights. Then, six of the court's seven appointed justices will face a likely campaign to block them from another term on the bench in November.
Davis Hammett, a Kansas-based activist with the progressive youth voter engagement group Loud Light, predicted that anti-abortion groups will follow the push to pass the amendment with a campaign to kick the justices off the bench. Organizations including Kansans for Life tried to do so in 2016, but were unsuccessful.
A chance for Democrats to bolster their 'anemic' state campaign infrastructure.
Democrats could seize on abortion policy being pushed to the states by directing more of their resources and political capital towards increasingly consequential state-level elections, races where Republicans have dominated for decades.
Gaby Goldstein, co-founder of Sister District, a group that supports progressives running for state legislatures, told Insider that many progressives view state power as "inferior" to federal power.
"I think that's a terrible mistake," she said.
In recent years, Democrats have begun to recognize the cost of the decades-long underinvestment in state-level races. In the wake of President Donald Trump's win in 2016, progressives formed groups like Sister District, Swing Left, and Run For Something, to make up the deficit by recruiting and supporting progressive candidates for state legislative seats and local offices.
But the decades-long mismatch in investment at the state level, among other things, resulted in Republicans locking up their gains in state legislatures in 2020, even as Democrats won back control of the White House.
Goldstein said that the "anemic infrastructure" when it comes to state court races on the left is due to Democrats, as a whole, lacking the same expansive and positive view of state power that conservatives hold.
"We're in a big hole, and we got to get out of this hole right away," she said.
The Republican State Leadership Committee, for example, has spent around $20 million influencing state supreme court races over the past decade, contributing to a "significant imbalance" in spending from liberals and conservative sources, Keith said.
Democrats have steadily closed the gap in state supreme court races mainly with campaign spending by PACs and nonprofits at the state level. But they lack any kind of national, organized equivalent.
The RSLC's counterpart, the Democratic Legislative Campaign Committee, is beginning to invest money in state supreme court races, but has historically focused mainly on state legislatures. And while the National Democratic Redistricting Committee has spent some money influencing state supreme court races, the scope of their spending only represents a fraction of the RSLC's investments, Keith said.
"It's not what a lot of organizations are built for," Goldstein said of state court races. "It's a gap in the infrastructure that we all, collectively, need to address."
But 2022, Goldstein argued, poses a potentially once-in-a-generation opportunity for progressives to construct a positive narrative that centers state actors, like judges, as forces for good.
"We need to redistribute the energy from almost entirely federal strategies to include robust programs at the state level," she said.
Abortion will put even more of a target on state judges' backs.
Even if Democrats hold onto key state supreme court seats, the overturning of Roe will spur more efforts by Republican-controlled legislatures to curtail state courts' ability to provide judicial review of abortion laws and target the independence of the courts.
In 2021, 14 states passed 19 laws that curtail state courts' ability to rein in or strike down state laws, politicize judicial selection, and make it easier for judges to be targeted for their decisions, according to the Brennan Center.
On top of that, lawmakers in 10 states proposed 14 bills that would outlaw abortion, prohibit state supreme courts from overturning abortion restrictions, and/or treat all state and federal court decisions upholding abortion rights as null and void, with one such bill moving out of committee in Missouri.
None of those measures passed in 2021, but lawmakers could revive them in upcoming legislative sessions or include attacks on judges in new abortion bans.
Already, Republican state lawmakers in Louisiana responded to the draft Supreme Court opinion leak by pushing a new, draconian bill that classifies abortion as homicide, opens the door to abortion patients being charged with murder, and subjects judges who block or overturn the law to impeachment or removal from the bench.
"It's crucial in this moment for the public to know how important these courts are," Keith said. "No matter where you lie on the ideological spectrum, there's going to be a moment in which you are hoping that these courts are able to be independent."
This is the latest story in an Insider series about state supreme courts. Read parts one, two, and three here.