In November, voters in Montana enshrined the right to abortion in the state constitution. They also elected a new Chief Justice of the Montana Supreme Court who was supported by anti-abortion advocates.
This apparent contradiction is set to reach its peak this year. People on both polar sides of the abortion debate are gearing up for a fight over how far to expand abortion protections, with the final say likely to come from the seven-person state Supreme Court. With the arrival of new Chief Justice Corey Swanson, who ran as a judicial conservative for the nonpartisan seat and was He was sworn in on January 6court now Leaning more conservative than it was before the election.
A similar dynamic is at play elsewhere. Abortion rights supporters won ballot measures in seven of the 10 states where abortion was up for a vote in November. But even with the new constitutional protections approved by voters, courts will have to dismantle a web of existing state laws on abortion and align them with any new laws approved by lawmakers. The new formation of the Supreme Courts in several states indicates that the results of the upcoming legal battles are not clear-cut.
Activists are working to reshape the Supreme Courts, which in recent years have become the final arbiters of a range of laws regulating abortions. This is because the 2022 US Supreme Court decision was issued in Dobbs v. Women’s Health Jackson It dropped federal protections for abortion, leaving rule-making to the states.
Since then, the politics of the state’s Supreme Court elections have become “highly charged” as battles over abortion move to state supreme courts, according to the British newspaper “Daily Mail”. Douglas Keitha senior adviser at the nonpartisan Brennan Center for Justice.
“Because we’re human, you can’t erase these races from any political connotations at all,” said Jim Nelson, a former Montana Supreme Court justice. “But it’s getting worse.”
The wave of abortion-related lawsuits in state courts has generated some of the most expensive Supreme Court races in history, including… More than $42 million He served in the nonpartisan 2023 Supreme Court race in Wisconsin, where Access to abortion It was among the issues facing the court. Janet Protasevich He won the seat, tipping the balance of the court in favor of the liberal majority.
In many states, judicial elections are nonpartisan, but political parties and ideological groups still lobby for candidates. In 2024, abortion has emerged as a major issue in these races.
in michigan, Spending by non-nominated groups It alone exceeded $7.6 million for the two open seats on the state Supreme Court. Michigan races are officially classified as nonpartisan, although candidates are nominated by political parties.
that Advertisement for candidates The Democratic-backed Democrats warned that “Michigan’s Supreme Court could still strike down abortion rights” even after voters added abortion protections to the state constitution in 2022. “Keira Harris Bolden and Kimberly Thomas are the only Supreme Court nominees who will vote,” the ad continued. . Protecting access to abortion. They both won their races.
Opposing abortion is Kelsey Pritchard, the state’s public affairs director Susan B. Anthony Pro Life America, He denounced the influence of abortion policy on state court elections. “Pro-abortion activists know they can’t win through legislatures, so they have turned to state courts to override state laws,” Pritchard said.
Some abortion opponents now support changes to the way state supreme courts are selected.
In Missouri, where voters passed a constitutional amendment in November to protect abortion access, the new leader of the state Senate said: Cindy O’LaughlinThe Republican proposed switching to nonpartisan elections from the state’s current model, where the governor appoints a judge from a list of three finalists selected by a nonpartisan commission. Although Republicans have controlled the governor’s mansion since 2017, she pointed to the Missouri Supreme Court’s 4-3 ruling last September that allowed the abortion amendment to remain on the ballot, and said the courts had “undermined the effort.” Legislation to protect life.
In a case widely expected to reach the Missouri Supreme Court, Planned Parenthood clinics in the state are trying to use passage of the new amendment to overturn abortion restrictions in Missouri, including a near-total ban. O’Laughlin said her proposal, which would need to be approved by the Legislature and voters, is unlikely to affect that current lawsuit but will affect future cases.
“A judiciary accountable to the people would provide a fairer venue to address legal challenges to pro-life laws,” she said.
Nonpartisan judicial elections can buck broader electoral trends. In Michigan, for example, voters elected Democratic-nominated Supreme Court nominees last year, even as Donald Trump won the state and Republicans regained control of the state House of Representatives.
In the nonpartisan Kentucky race, Judge Pamela Goodwin, who was endorsed by Democratic Governor Andy Beshear, outperformed her rival even in districts that went for Trump, who won the state. She will serve on the bench while a woman’s challenge to the state’s abortion ban makes its way through the state courts.
However, partisan judicial elections tend to track with the results of other partisan elections, according to the Brennan Center’s Keith. So some state legislatures have sought to turn nonpartisan state Supreme Court elections into entirely partisan affairs.
And in Ohio, Republicans have won every state Supreme Court seat since lawmakers passed a bill in 2021 requiring party affiliation to appear on the ballot for those races. That includes three seats up for grabs in November that boosted the Republican majority on the court from 4-3 to 6-1.
“These justices who were elected in 2024 have been very open about being anti-abortion,” said Jessie Hill, an attorney with the American Civil Liberties Union of Ohio, who has sued against abortion restrictions in Ohio since voters added the protections to the law. State constitution in 2023.
Until the recent vote on the ballot measure in Montana, it was the only obstacle Blocking abortion restrictions passed by Republicans Of effect was a A 25 year old decision The limitation of Montana’s right to privacy extends to abortion.
The court has since become progressively more conservative, said Nelson, the former justice who was the primary author of the decision. He noted that the state’s other incoming judge, Catherine Bedegaray, was supported by abortion rights advocates.
“The dynamic of the court is going to change,” Nelson said after the election. “But the chief justice has one vote, like everyone else.”
Swanson, Montana’s new chief justice, said throughout his campaign that he would make decisions on a case-by-case basis. Him too He scolded his opponentJerry Lynch, for saying he would respect the court’s ruling protecting abortion. Swanson described such statements as a signal to liberal groups.
At least eight cases are pending in Montana state courts challenging state laws restricting access to abortion. New constitutional language, which takes effect in July, could further strengthen those issues, but the outcome of the court election leaves room for uncertainty, said Martha Fuller, president and CEO of Planned Parenthood Advocates of Montana.
The two state judges were outgoing Previous relations with the Democratic Party. Fuller said they consistently support abortion as a right to privacy. “One of those people is being replaced by someone who we don’t know would support this,” she said. “There will be a period where we try to figure out where different judges fall on these issues.”
These cases likely won’t end the abortion debate in Montana.
By the start of the legislative session in early January, Republican lawmakers, who for years had described the state Supreme Court as liberal, had already proposed eight abortion-related bills and dozens of other bills aimed at reshaping the judiciary. Among them is A A draft law to make judicial elections partisan.
Montana Sin. Daniel EmmerichRepublican who asked Draft law titled “Ban dismembering people and providing the definition of human” He said it was too early to know what restrictions anti-abortion lawmakers would most strongly push for.
Ultimately, any proposed new restrictions and the ramifications of the constitutional amendment would likely reach the state Supreme Court, he said.
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