Pennsylvania Supreme Court Race Tests Democrats’ Post-Roe Strategy On Abortion Rights

Pennsylvanians will vote on a new state Supreme Court justice on Nov. 7 in what will be the latest test of the ongoing political fallout from the U.S. Supreme Court’s June 2022 decision overturning Roe v. Wade, which ended the national right to an abortion.

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization voided national abortion rights, leaving it to states, Democrats and their allies have leaned hard on the issue of abortion in races up and down the ballot. Judicial races have received particular attention, especially in swing states, as state courts have now become the primary battleground for fights over the legality of abortion.

The race in Pennsylvania, between Democratic nominee and current Superior Court Judge Daniel McCaffery and Republican nominee and current Montgomery County Court of Common Pleas Judge Carolyn Carluccio, acts as a test case to indicate how well the anti-Dobbs message is still working ahead of the 2024 presidential election.

“This race could be a precursor to see if abortion and democracy drive voter performance,” said J.J. Abbott, executive director of Commonwealth Communications and a spokesperson for the independent campaign effort to elect McCaffery.

In the 2022 midterm elections, abortion was front and center in Democrats’ campaign to beat back an expected “red wave” that would sweep Republicans into office across the country. But that wave never broke as Republicans barely won control of the U.S. House, lost a seat in the Senate and lost key races in a number of swing states. That included losing the governor’s race and the state assembly in Pennsylvania.

The race between McCaffery and Carluccio is set to fill the seat left vacant by the death of Chief Justice Max Baer in 2022. The outcome will not determine control of the court, as Democrats currently hold a 4-2 advantage even with Baer’s seat vacant, but with two retention elections for Democratic justices coming up in 2025, it could either set the stage for a Republican takeover or help solidify Democratic control for years to come.

Daniel McCaffery, a candidate for Pennsylvania Supreme Court judge, speaks at a women's organizing event and canvass launch in Norristown, Pennsylvania.
Daniel McCaffery, a candidate for Pennsylvania Supreme Court judge, speaks at a women's organizing event and canvass launch in Norristown, Pennsylvania.

Daniel McCaffery, a candidate for Pennsylvania Supreme Court judge, speaks at a women's organizing event and canvass launch in Norristown, Pennsylvania.

The right to an abortion is generally supported by Pennsylvanians, according to polling conducted in 2022 by Franklin & Marshall College. An August 2022 poll found that nearly 90% of registered voters in the state thought abortion should be legal in some or all cases. Three-fifths of registered voters also opposed the passage of a constitutional amendment banning abortion.

Though she has made few public statements on her abortion position, Carluccio has been endorsed by state-level anti-abortion groups, including PA Pro-Life Federation and the Pro-Life Coalition of Pennsylvania. Those endorsements were touted in mailers during the Republican Party primary by Commonwealth Leaders Fund, an independent expenditure group funded by libertarian investor Jeffrey Yass.

Planned Parenthood and other McCaffery supporters have attacked Carluccio for removing a biography with anti-abortion rhetoric, which said she was a “Defender of 2nd Amendment Rights and All Life Under the Law,” from her website after winning the Republican Party primary. Carluccio’s campaign claimed in an editorial board interview with Pennsylvania newspapers that the bio, created by a former political consultant, was removed following a website redesign.

In that same interview, she said, without specifics, that her position was that she “follow[s] the law,” and added, “until somebody changes the law, that’s what I’m applying.”

Unlike Carluccio, McCaffery has been vocal in supporting abortion access, attacking the Dobbs decision and promising in campaign speeches to defend reproductive rights.

In a campaign speech in August, McCaffery promised to protect “the rights that we Democrats have fought for for 60 years. Women’s reproductive rights. You think about that: That’s literally been rolled back and rolled into state court.”

Abortion is currently legal in Pennsylvania through the 23rd week of pregnancy. But that could change if the composition of the state court changes. There are challenges to existing abortion laws moving through Pennsylvania courts, including one lawsuit seeking to undo the state’s ban on Medicaid funding for abortions. Republicans in the state legislature have also introduced a constitutional amendment to ban abortions that could become law if they win back control of state government.

“Abortion is clearly on the ballot here,” Breana Ross, campaign director for Planned Parenthood Votes, said. “The key is to make sure we’re educating voters on how this election will affect abortion access.”

The ramifications also go beyond Pennsylvania’s borders. Since the U.S. Supreme Court’s decision overturning Roe, 24 states have severely limited or in effect banned abortion or are likely to do so while lawsuits move through their court systems. Residents of those states ― including Pennsylvania’s neighbors Ohio and West Virginia ― have had to seek abortion care in other states.

“We saw a surge in abortion appointments, especially on the western side of the state, from women seeking care from out of state,” said Ann Steiner, an OB-GYN and abortion provider in Pennsylvania.

Planned Parenthood has teamed up with a coalition of groups aligned with reproductive rights advocates and the Democratic Party to fund a large-scale advertising and grassroots campaign for McCaffery. Planned Parenthood Votes, the organization’s political arm, is running a seven-figure ad buy in support of McCaffery, its largest ever investment in a state supreme court race. It is buoyed by a six-figure ad buy from the Democratic Legislative Campaign Committee as well as grassroots efforts to turn out voters from labor unions, gun control groups and voting rights organizations.

Montgomery County Judge Carolyn Carluccio, a Republican candidate for Pennsylvania Supreme Court, campaigns in Connellsville, Pennsylvania.
Montgomery County Judge Carolyn Carluccio, a Republican candidate for Pennsylvania Supreme Court, campaigns in Connellsville, Pennsylvania.

Montgomery County Judge Carolyn Carluccio, a Republican candidate for Pennsylvania Supreme Court, campaigns in Connellsville, Pennsylvania.

Abortion is the leading line of attack in the campaign, but it is not the only issue: Voting rights and democracy-related issues, such as efforts to overturn elections, also feature as a major political hot button in Pennsylvania, as they did in Democrats’ midterm campaign messaging.

Pennsylvania was, after all, one of the five swing states, along with Arizona, Georgia, Michigan and Wisconsin, that former President Donald Trump targeted in his campaign to overturn the 2020 presidential vote. As part of that campaign, Trump and his allies filed numerous lawsuits in state courts seeking to challenge voting procedures and invalidate the ballots of thousands of Pennsylvanians. In almost every case, the state Supreme Court shut him down.

And similar challenges are expected ahead of the 2024 election, which is likely to feature a rematch between Trump and President Joe Biden. Carluccio has said that she will follow existing law in her rulings but has also declared opposition to the state law that legalized mail-in voting, enacted in 2019.

At an event held by the Erie County GOP during the Republican primary, she called Act 77, which allows mail-in voting in the state, “very bad for our Commonwealth” and “very bad for just faith in our system.” She added that if a challenge to the law came before the state Supreme Court she would be “happy to take a look at it.”

McCaffery, on the other hand, told Bolts Magazine, “If we’re going to err, we should always err on the side of including votes, as opposed to disqualifying votes for technicalities, or perceived technicalities.”

There is at least one live legal question regarding Act 77 that could be decided by McCaffery or Carluccio: In 2022, the court deadlocked 3-3 over whether the law’s date and signature requirements for mailed ballots were in violation of federal law. By leaving the requirements in place, thousands of votes in the 2022 election were not counted because voters failed to sign or properly date their ballot. Without a definitive majority ruling in 2022, this issue is still live and could come back ahead of the 2024 election.

Beyond the hot campaign issues of abortion and voting rights, the court has also recently heard challenges on important statewide issues such as public school funding, rights for criminal defendants, oil and gas leasing, environmental stewardship and gerrymandering. And these issues are also likely to come back before the court in the future.

Many of those issues will be decided years down the line. But whether Democrats’ strategy of putting abortion front and center continues to bear fruit electorally will be more apparent when the election is over.