If You Care About Reproductive Rights, Keep a Close Eye on These Under-the-Radar Elections
So much attention is focused on the presidential race and the role that abortion will play in that election—but a pair of recent state supreme court decisions restricting abortion have supercharged the stakes on some crucial down-ballot races, too.
Earlier this month, the Arizona Supreme Court, in a 7–2 decision, revived an 1864 law that prohibits abortion in cases where a patient would suffer the permanent impairment of a major bodily function, as well as cases of sexual assault or incest. In Florida, state justices also overturned a decades-old precedent recognizing reproductive rights. A Florida ballot initiative amending the state constitution to declare that “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health,” which must clear a 60 percent threshold, is already set to go before voters. Arizona voters, like those in more than a dozen other states, may also have a chance to weigh in on whether to write reproductive rights into their state’s constitution.
Ballot measures have unquestionably been a tremendous success for supporters of reproductive rights and may help turn out Democrats who might otherwise stay home. Voters in Ohio, a red state, wrote reproductive rights into their constitution last year. A range of states, from Michigan to Kansas to Montana, have all passed abortion-rights ballot initiatives since 2022.
But the recent spate of decisions is also a reminder of the importance of state judicial elections. For one thing, there is a real chance that voters will approve ballot initiatives only to see them gutted by state judges. The balance of power of courts in key states that have just passed a ballot initiative, including Michigan and Ohio, will be determined in November. States where constitutional challenges under existing provisions are ongoing, including Kentucky and Iowa, also have key judges facing election. Wisconsin, already the site of the most expensive state supreme court election on record, will host another battle after one of the state court’s Democratic judges announced she is stepping down.
It is state judges who will decide whether to narrow or eviscerate state protections. And it is voters who will decide whether judges will be accountable for unpopular decisions.
First, state courts can determine whether voters who write reproductive rights into the constitution will actually get their way. A state could recognize reproductive liberty in theory while a state court signs off on any number of restrictions. That, after all, was what happened across large swaths of the country when Roe v. Wade was still the law. In Oklahoma, after the fall of Roe, the state supreme court recognized a right to life-saving abortions and then upheld a 19th-century law allowing abortions only when a patient’s life is at risk.
Then there is the possibility that a state supreme court will hold that fetal constitutional protections override whatever reproductive right becomes part of state constitutions. Anti-abortion groups argue that the word “person” in key state constitutional provisions applies from the moment an egg is fertilized. That means, they argue, that liberal abortion policies are themselves unconstitutional because they deny fetal persons equal protection and due process of law. For years, some anti-abortion groups have argued that a fetal right to life is paramount—that is, even if a constitution protects reproductive rights, fetal protection would trump it.
To date, no state court has recognized constitutional fetal personhood, but it’s hard to imagine that will last forever. The Alabama Supreme Court, which has judges up for reelection this year, already recognized embryos as persons for the purpose of state wrongful death law, but the judges’ reasoning seemed much broader. Some read the Florida Supreme Court’s decision allowing a ballot measure on abortion to go forward as inviting a personhood-based challenge. Any number of other states have personhood language in their laws that an opportunistic court could use to reinterpret the constitution.
Professor David Pozen has long argued that state supreme court elections can be a way for voters to register their views about constitutional rights. In theory, voters in Arizona or Florida who are angry about recent developments can fire the judges who handed down unpopular decisions. There is no similar mechanism when it comes to the U.S. Supreme Court. Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade in 2022, is deeply unpopular, and yet there is nothing voters can do until one of the justices retires—assuming control of the Supreme Court is even front of mind for voters.
Skeptics of the accountability of state supreme courts argue that voters are uninterested and underinformed about what state courts do. To begin with, not every state court holds elections. Some judicial positions, as in South Carolina, are filled by partisan state legislatures. Others host only retention elections, and if a judge loses a bid for reelection, a governor chooses their replacement—hardly a recipe for sweeping change in places like Florida, where Ron DeSantis would be expected to replace one conservative judge with another. Even in truly contested elections, incumbents hold a formidable advantage: According to some research, only 1 percent of incumbents lose elections.
The exceptions come when state courts have taken on controversial questions like reproductive rights. That’s with good reason. Voters frustrated about the destruction of Roe have already made their feelings known in any number of elections. But if state judges are unaccountable, those victories might just be hollow. That means that this November, state judicial elections will be among the most important contests on the ballot. Voters will have to decide not only whether their constitutions should recognize reproductive rights but also if those rights will be meaningfully enforceable.
