The next front line in the war on abortion: State Supreme Court

WASHINGTON — Fresh from the political elite of the U.S. Supreme Court, the fight against abortion is now shifting to venues poised to be the next front line in the country’s partisan battle: the courts. state supreme.

In Florida, seven judges appointed by Republican governors will decide whether the state Constitution’s explicit privacy rights, which have protected abortion rights in previous rulings, remain precedent. or not. In Michigan, a court with a 4-3 Democratic majority was asked to decide whether the 91-year-old abortion ban was constitutional. In Kentucky, a decision to ban virtually all abortions appears to be bound by a Supreme Court made up of largely nonpartisan elected judges.

In those states and others, the federal reversal of Roe v. Wade threw one of the nation’s most explosive political issues into courtrooms that, until recently, had been most active. under the spotlight of national politics.

The growing political pressure on judges – and the right-wing tilt of some courts – suggests that the options for abortion rights advocates to lessen the impact of a federal abortion ruling states may be restricted. It also reflects how partisan politics is emerging as a driving force in the way some judges rule.

Over the past decade or so, the National Republican Party and other conservative groups have spent a lot of money getting both the state legislature and the courts right. The party’s Justice Justice Initiative says it has spent more than $21 million since formed in 2014 to elect conservatives to state courts, and will spend more than $5 million this year. The Judiciary Crisis Network, a conservative advocacy group that has been a major supporter of Republican candidates recently nominated to the US Supreme Court, has also invested money in court races. state supreme court.

Democrats have also poured growing amounts of money into court elections, as have allies like labor unions — but not as much and not for long, as have Republicans. But the right-wing tilt of the federal courts has increasingly led progressives to see the state courts as the state courts, said Joshua A. Douglas, an election and voting rights scholar at the University of Kentucky. potential bulwark against more conservative interests.

According to Douglas Keith, an expert on state judicial affairs at New York University’s Brennan Center for Justice, a right-wing focus on the courts could be of great benefit in legal battles over bankruptcy. pregnant.

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

Montana also recognizes the constitutional right to abortion. In last month’s nonpartisan primaries for one of its seven Supreme Court seats, both the State’s Justice Equity Initiative and the Republican Party spend money to make sure that a candidate backed by anti-abortion advocates, James Brown, will oppose an incumbent judge, Ingrid Gustafson, in November. Ms. Gustafson was nominated to the bench in 2017 by the president. Governor at the time, Steve Bullock, a Democrat.

The reversal of abortion rights in Iowa “isn’t the last we might see,” said Keith. “In comparison, the lack of attention these courts have received from the left wing, will return home to mastery.”

A major experiment is taking place 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 government intrusion into his or her private life.” .

The Florida Supreme Court previously cited a clear guarantee of privacy in repealing laws restricting access to abortion. That precedent is now endangered.

In 2019, the last three judges nominated by a Democratic governor retired. Governor Ron DeSantis, a Republican who had opposed abortion becoming the center of a possible presidential campaign, replaced them with conservatives.

From voting rights to redistricting, the State Supreme Court has delivered credentialed rulings with conservative support in recent years. Daniel A. Smith, a University of Florida political scientist who watches the court, said he believes that is unlikely to change.

“I think the Supreme Court of the United States is sending a signal to the judges in the state high courts that precedent doesn’t matter anymore,” he said. Dr. Smith predicts that the constitutional guarantee of privacy “will be removed” when state courts rule on abortion.

Attorney General Daniel Cameron of Kentucky, a Republican, on Sunday asked the State Supreme Court to issue an emergency order suspending a lower court’s decision allowing the service provider to break the law. The state’s only pregnancy is open. The court denied the request on Tuesday.

In elections to the State Supreme Court this fall, State Representative Joseph Fischer, presumably head of the Legislature oppose abortionis running for office with Michelle M. Keller, who was appointed to the court in 2013 by Steve Beshear, a Democrat who was then governor.

National political parties and interest groups will focus their money and attention this fall on the state supreme courts in four states – Illinois, Michigan, North Carolina and Ohio – where the The election could overturn the majority of the courts from Democrats to Republicans or vice versa. But other states can be played.

Six of the seven justices of the Democratic-led Supreme Court in Kansas must run in retention elections, and some are likely to be targets of Republicans angered by court ruling in 2019 that abortion is a constitutional right. Arkansas Republican Party is support a former president of the state party against an incumbent Democratic justice in an attempt to remove remaining moderates from the already conservative court.

Even more than abortion, the focus on state courts has reflected the politics of redistricting, especially after a 2019 U.S. Supreme Court ruling that made party leaders must oversee state legislatures and courts. National Republicans say changing the state’s supreme courts is the only way to prevent Democrats from taking power by successfully suing to overturn the Republican political map, a strategy that they mockingly called “suing until it’s green”.

“If Republicans and conservatives want control over the redistricting process, gaining control of state legislatures is not enough. You also need control of the supreme courts,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee.

Kelly Burton, chair of the National Democratic Redistricting Committee, who has backed many of those lawsuits, said the fight is more about stopping the rampant autocracy than about changing political boundaries. .

“It’s about suffrage cases,” she said. “It’s about the fight for access to abortion. And we’re essentially trying to defend 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 pressure mounts.

Maureen O’ConnorA 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 judges to remove her. political map criticized by the Republican Party.

For some, she said, her vote on redistricting the region “shows integrity, independence and respect for the rule of law and the Constitution. To others, I am a traitor.”

Nathan Hecht, the all-Republican Chief Justice of the Texas Supreme Court, has campaigned for years to eliminate the state’s partisan election system for judicial positions. “Texas has one of the dumbest systems in the world, and he worries that growing partisanship will make it even worse,” he said.

However, he said he thinks it’s more likely that when divisive issues like abortion “are divided among the states, the states will seek to reach a middle ground where federal legislators cannot.” can be found.” But he added, “I wouldn’t bet on that.”

On Friday, a Texas court lifted a lower court’s ban on a 1925 law banning abortion and raised the prospect of jail time for those who provide the service. A full hearing on the law will be held later.

Sheelagh McNeill Contributing research.