In Florida, seven judges appointed by Republican governors will decide whether the State Constitution’s express right to privacy, which protected abortion rights in earlier decisions, remains precedent. In Michigan, a court with a 4-3 majority of Democratic candidates was asked to conclude whether a 91-year-old law banning abortion is constitutional. In Kentucky, a decision to ban nearly all abortions appears bound by 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 explosive political issues into courtrooms that, until recently, operated mostly under the radar of national politics. Growing political pressure on the justices — and the shift of some courts to the right — suggests that the options for abortion rights advocates to soften the impact of the federal abortion ruling may be limited. It also reflects how partisan politics is emerging as a driving force in how some justices are governed. Over the past decade or so, the national Republican Party and other conservative groups have spent heavily to move state legislatures and courts to the right. The party’s Judicial Fairness Initiative says it has spent more than $21 million since its founding 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 nominees to the U.S. Supreme Court, has also invested money in high court races. The Democratic Party has also poured increasing amounts of money into judicial elections, as have allies like labor unions — but not as much, and not for as long, as Republicans. But the rightward sway of the federal courts is increasingly leading progressives to view state courts as potential bulwarks against more conservative gains, said Joshua A. Douglas, a scholar of elections and voting rights at the University of Kentucky. The right’s focus on the courts could pay off big 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 stronghold. Last month, a week before the US Supreme Court overturned its decision in Roe v. Wade, Iowa judges reversed their own 2018 abortion decision. Montana also recognizes a constitutional right to abortion. In last month’s nonpartisan primary for one of the Supreme Court’s seven seats, both the Justice Initiative and the state GOP spent money to ensure that a candidate backed by abortion opponents, James Brown, would oppose to a sitting judge, Ingrid Gustafsson. In November. Ms. Gustafson was nominated for the seat in 2017 by then-governor Steve Bullock, a Democrat. The reversal of abortion rights in Iowa “is not the last we may see,” Mr. Keith said. “The lack of attention these pitches have received from the left, by comparison, is going to be put to rest.”
From the 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 well die.” Mara Gay: “Sex is fun. For the puritanical tyrants who seek to control our bodies, this is a problem.” Elizabeth Spiers: “The notion that rich women will be fine, no matter what the law says, is probably comforting to some. But it’s just not true.” Katherine Stewart, author: “ has broken down in American democracy not an unintended side effect of Christian nationalism. This is the meaning of the work.”
A major test looms in Florida, where the State Constitution’s Bill of Rights states that “every natural person has the right to be left alone and free from governmental intrusion into the private life of the individual.” The Florida Supreme Court previously cited this express guarantee of privacy when striking down laws that restricted access to abortion. This 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 a centerpiece of a potential presidential campaign, replaced them with conservatives. From voting rights to redistricting, the State Supreme Court has reliably ruled in favor of conservatives in recent years. Daniel A. Smith, a University of Florida political scientist who follows the court, said he thinks that’s unlikely to change. “I think the U.S. Supreme Court is sending a message to the judges on the state supreme courts that precedent no longer matters,” he said. Dr. Smith predicted that the constitutional guarantee of privacy “will be obliterated” when the state court issues its ruling on abortion. Kentucky Attorney General Daniel Cameron, a Republican, asked the state Supreme Court on Sunday to issue an emergency order staying 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 Representative Joseph Fischer, perhaps the Legislature’s leading abortion opponent, is running to unseat Michelle M. Keller, who was appointed to the court in 2013 by Steve Beshear , a Democrat who was then the 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 flip the court’s majority from Democratic to Democratic. to Republican or vice versa. But other states could play as well. Six of the 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 Democratic sitting justice in an effort to rid the already conservative court of remaining moderates. Even more than abortion, the focus on state courts reflects the politics of redistricting, particularly after the U.S. Supreme Court’s 2019 decision left oversight of party operators to state legislatures and courts. National Republicans say changing state supreme courts is the only way to stop Democrats from gaining power by suing to overturn Republican political maps, a strategy they mockingly call “sue until blue.” “If Republicans and conservatives want to control the redistricting process, then it’s not enough to win control of state legislatures. You also have to control the supreme courts,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee. Kelly Burton, chairwoman of the Democratic National Reconstruction Committee, which has supported many of these lawsuits, said the battle was more about stopping a creeping autocracy than changing political boundaries. “These are voting rights cases,” he said. “These are fights over access to abortion. And basically, we’re trying to protect these courts as neutral arbitrators, while Republicans want to make them less independent and more partisan.” Some judges say they feel caught in the middle as partisan pressures mount. Maureen O’Connor, a Republican who is the chief justice of the Ohio Supreme Court, was threatened with impeachment by some in her own party this spring after she voted with Democratic justices to strike down Republican-issued political maps. To some people, she said, her vote for redistricting “shows integrity and independence and respect for the rule of law and the Constitution. For others I am a traitor.” Nathan Hecht, the chief justice of the Texas Supreme Court, has campaigned for years to abolish the state’s system of partisan elections for judicial positions. “Texas has one of the dumbest systems in the world,” he said, and he worries that growing partisanship will make it even worse. But he said he thinks there’s a good chance that as divisive issues like abortion “are moved to the states, the states will find ways to reach a middle ground that federal lawmakers haven’t been able to find.” But he added, “I’m not going to bet on it.” On Friday, a Texas court lifted a lower court’s freeze on a 1925 law that bans abortions and carries the prospect of prison for those who provide them. A full hearing on the law will be held at a later date. Sheelagh McNeill contributed to the research.
