Abortion at center of state Supreme Court elections

Elizabeth Whitmarsh has been knocking on doors in Ohio to talk about conservative politics for the past four years, first as a regional field director for the state Republican Party. Starting in late 2020, she noticed a shift among the prospective voters: “I’d advocate for a certain congressional race, and they’d stop me and say, ‘That’s great, but who’s running for Supreme Court? Where do they stand on abortion?’”

Ohio is one of 38 states that elect justices to the state Supreme Court. This year, three justices are up for reelection. While the bench technically has a 4-3 conservative majority, two justices—one Democrat and one Republican—are running to replace the retiring chief justice. The inevitable vacancy will allow the governor to appoint a replacement after the midterms. Whitmarsh, who now works as the communications director for Ohio Right to Life, is pounding the pavement to urge Ohioans to vote pro-life in a typically low-attended election year.

Experts expected state Supreme Court races to get more politicized this year because of redistricting lawsuits—and that was before a leaked U.S. Supreme Court draft opinion foreshadowed the end of Roe v. Wade. A decision in that case could come any day. Pro-life and pro-abortion advocates are pumping money into campaigns that could decide who gets to weigh the constitutionality of an anticipated flood of abortion-related legislation if the justices return the full power to regulate abortion to the states.

Judicial elections can be partisan, nonpartisan, or retention, meaning voters choose whether to retain an incumbent judge. Of the 38 states that elect justices, 32 have elections this year: 18 partisan elections, 25 nonpartisan, and 42 retention. This year for the first time, Ohio judicial candidates for the high court must list their party affiliation on the ballot, joining candidates in six other states that do the same.

Ohio enforces a law that protects babies from abortion after 20 weeks’ gestation. A 2019 heartbeat bill would prevent abortions after six weeks, but federal appellate courts blocked it from taking effect. Ohio Right to Life president Mike Gonidakis told Politico his organization was prepared to “empty the war chest” to educate voters on the judicial election.

“If as a culture, we’re not going to stand for the sanctity of life, then how can we stand for any other issue?” Whitmarsh said. “While it is just one issue, abortion is one of the most important, if not the most important, one that will be on the ballot.”

Even before the leak of a draft U.S. Supreme Court opinion in a landmark abortion case in May, record spending was flooding state Supreme Court campaigns. The Brennan Center released a report in January which found the 2019-2020 judicial election cycle was the most expensive on the books. The report tracked $97 million in national and state spending, and interest groups poured $35 million into ads and lobbying, which accounted for 36 percent of the funding.

One of the top donors, the Judicial Fairness Initiative, is an extension of the Republican State Leadership Committee. The organization spent heavily in 2020 in anticipation of redistricting challenges, and it plans to spend more this year. Democrats are also mobilizing. The Democratic Attorneys General Association declared it would spend $30 million, including in judicial races, on candidates who support abortion. In its latest target memo, the Democratic Legislative Campaign Committee announced it will start investing specifically in state Supreme Court races this election cycle.

Judicial elections differ in that candidates typically try to avoid giving their personal opinions on controversial legal questions. Tami Fitzgerald, executive director of the North Carolina Values Coalition, looks for keywords and combs judicial track records before she makes endorsements. The terms of two Democratic justices on the state’s 4-3 liberal majority bench are expiring; one justice is retiring, the other running for reelection.

In 1973, the same year Roe v. Wade was decided, North Carolina passed a law protecting babies from abortion after 20 weeks of gestation, but a court has placed it on hold. The state Supreme Court could revisit the case if Roe falls. With two seats up for grabs, Fitzgerald said the coalition is looking for constitutional originalists.

“Our constitution dates back to the 1700s. There is no way the people who drafted it even contemplated abortion,” Fitzgerald said. “If candidates indicate the constitution can be interpreted according to changes in society, then you realize that they will probably not follow the original intent of the documents.”

Fitzgerald worries North Carolina’s pro-abortion laws that allow babies to be killed for up to 24 weeks of gestation will make her state the abortion destination of the South. Nearby Tennessee has a trigger law that would protect babies from abortion as soon as Roe is overturned. Georgia and South Carolina have heartbeat bills currently enjoined in court that would likely be reinstated.

Pro-lifers in Kansas have a similar fear. In 2019, six of the seven Kansas Supreme Court justices recognized a right to an abortion within the state constitution, making it the 10th state and the only one in the Midwest to do so. Two of the justices who concurred with the decision are up for a retention vote this year. Kansas Right to Life leaders have lobbied for a constitutional amendment on the ballot this year to add a provision that abortion is not a right. They said they are now expanding their efforts to support pro-life judges, but no one is challenging any of the seven justices on the ballot for retention.

—WORLD has updated this story to correct the description of the 2022 North Carolina Supreme Court races.