After the Supreme Court overturns Roe v. Wade, reproductive rights will be decided in the states (at least unless and until a Republican-controlled Congress passes a nationwide abortion ban). That means that access to abortion could be in the hands of state supreme courts, many of which have elections coming up. And that, in turn, means there are going to be some very expensive, hotly fought state supreme court races.
Republicans have long understood the importance of down-ballot races like state supreme courts, while Democrats have only recently started focusing serious efforts on them. In 2019 and 2020, nearly $100 million was poured into these races—an all-time high, according to the Brennan Center for Justice. It’s likely to be more in 2022.
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Ohio, Michigan, North Carolina, and Kansas have important judicial races coming up this fall. In Kansas, it’s in the form of retention elections for six justices, two of whom supported a 2019 decision affirming the right to abortion in the state.
In Ohio, conservatives have a four to three majority on the state Supreme Court. One moderate conservative has sided with Democrats on some key redistricting cases, but there’s no guarantee that willingness to break ranks extends to abortion rights. This November will be the first time judges have their party affiliation included on the ballot in the state.
The president of Ohio Right to Life is correct on one thing: “Everyone wants to talk about the sexy United States Senate race, or the governor’s race. When it comes down to it, the state Supreme Court is going to determine abortion jurisprudence in the state of Ohio,” he told Politico. “State Supreme Court elections are paramount.”
In Michigan, liberals have the four to three advantage, with one conservative and one liberal up for reelection, meaning the balance could shift as groups pour money into those races. Gov. Gretchen Whitmer is taking a pre-Roe abortion ban to the Michigan Supreme Court, asking it to block enforcement of that 1931 law. Michigan voters may also have the chance to vote on a ballot measure codifying the right to abortion.
Like Michigan, the North Carolina Supreme Court has a four to three liberal majority. There, two liberal judges are up for reelection, and a pre-Roe abortion ban and a more recent 20-week abortion ban that has never gone into effect are both on the table after the Supreme Court strikes down Roe. North Carolina saw its most expensive judicial race ever, at $6.2 million, in the last election cycle, but that record is likely to be broken this year.
These are large states, with the abortion rights of millions of residents directly at stake. But some are also strategically located, where if abortion rights are protected, they could be critically important sites of access for pregnant people from neighboring states.
Republicans have been building toward this moment for years, and they have their outside groups and their organizing networks ready. Democrats have only recognized and started to really organize around the power of these relatively obscure state-level positions in recent years, but they’ve done a lot to catch up in recent election cycles. Anti-abortion groups are making clear that they will leave it all on the road to win this year. Supporters of reproductive rights need to do the same.
GOP states move from banning surgical abortions to focusing on the pill, too
The Trump-packed Supreme Court will toss Roe: Blue states, providers scramble to fill the gaps