This story was originally published by KFF Health News.
In November, Montana voters secured abortion rights in the state constitution. They also elected a recent chief justice of the Montana Supreme Court, who was supported by anti-abortion advocates.
This apparent contradiction is set to unfold this year. Those on the extreme sides of the abortion debate are preparing to fight over how far abortion protections go, and the final word will likely come from the seven-member state Supreme Court. With the emergence of recent Chief Justice Cory Swanson, who ran as a judicial conservative for nonpartisan office and continued to serve as sworn in on January 6now the court leans more conservative than before the elections.
Similar dynamics occur elsewhere. Abortion rights supporters won the vote seven out of ten states where abortion was on the ballot in November. But even with recent, voter-approved constitutional protections, courts will have to untangle the web of existing state abortion laws and fit them into recent ones approved by lawmakers. The recent composition of supreme courts in several states indicates that the results of upcoming legal battles are inconclusive.
Activists are working to transform the highest courts, which in recent years have become the final arbiters of the patchwork of laws regulating abortion. This is because a 2022 U.S. Supreme Court decision Dobbs v. Jackson Women’s Health Organization repealed federal abortion protections, leaving regulation to the states.
Since then, the politics of state Supreme Court elections have been “supercharged” as fights over abortion have moved to state supreme courts, he says. Douglas KeithSenior Counsel at the non-partisan Brennan Center for Justice.
“Because we are humans, you cannot strip these races of any political connotations at all,” said former Montana Supreme Court Justice Jim Nelson. “But it’s getting worse.”
A wave of abortion litigation in state courts has sparked some of the costliest state Supreme Court races in history, including: over $42 million spent on the 2023 nonpartisan Supreme Court race in Wisconsin, where access to abortion was one of the issues before the court. Janet Protasiewicz won the seat, tipping the balance of the court to a liberal majority.
In many states, judicial elections are nonpartisan, but political parties and ideological groups still lobby for candidates. In 2024, abortion has become a major issue in these races.
in Michigan, expenditure of non-candidate groups itself exceeded $7.6 million for two open seats on the state Supreme Court. Michigan races are officially designated as nonpartisan, although candidates are nominated by political parties.
Some advertisement for two candidates Democrat-backed warned that “The Michigan Supreme Court could still take away abortion rights” even after voters added abortion protections to the state constitution in 2022. The ad continued: “Kyra Harris Bolden and Kimberly Thomas are the only candidates for the Supreme Court who protect access to abortion. They both won their races.
Abortion opponent Kelsey Pritchard, director of public affairs for Susan B. Anthony Pro-Life America, condemned the influence of abortion policy on state court elections. “Pro-abortion activists know they cannot win in the Legislature, so they have asked state courts to invalidate state law,” Pritchard said.
Some abortion opponents are now advocating for changes to the way state supreme courts are elected.
In Missouri, where voters passed a constitutional amendment protecting access to abortion in November, there is a recent president of the state Senate Cindy O’LaughlinThe Republican proposes switching to nonpartisan elections from the current state model, in which the governor appoints a judge from a list of three finalists selected by a nonpartisan commission. Although Republicans have held the governor’s mansion since 2017, she cited the Missouri Supreme Court’s 4-3 majority ruling in September that allowed the abortion amendment to remain on the ballot and said the courts were “undermining legislative efforts to protect life.”
In a case widely expected to go to the Missouri Supreme Court, the state’s Planned Parenthood clinics are trying to employ the passage of a recent amendment to end Missouri’s abortion restrictions, including a near-total ban. O’Laughlin said her proposal, which required approval from the Legislature and voters, was unlikely to affect current litigation but would have an impact on future cases.
“A judiciary accountable to the people would provide a fairer venue for hearing legal challenges to pro-life laws,” she said.
Nonpartisan judicial elections can buck broader electoral trends. In Michigan, for example, voters elected both Democratic nominees to the Supreme Court last year, even though Donald Trump won the state and Republicans regained control of the state House.
In Kentucky’s nonpartisan race, Judge Pamela Goodwine, endorsed by Democratic Gov. Andy Beshear, outperformed her opponent even in counties that went for Trump, who won the state. She will be on the bench when a woman’s challenge to two state abortion bans comes before state courts.
But according to Keith of the Brennan Center, partisan judicial elections tend to track the results of other partisan elections. That’s why some state legislatures have sought to turn nonpartisan Supreme Court elections into fully partisan affairs.
In Ohio, Republicans have won every seat on the state Supreme Court since lawmakers passed a law in 2021 requiring party affiliation to appear on the ballot in those races. That includes three seats up for grabs in November, which strengthened the Republican majority on the court from 4-3 to 6-1.
“The judges elected in 2024 have been quite outspoken in their opposition to abortion,” said Jessie Hill, a lawyer with the American Civil Liberties Union of Ohio, which has been filing a challenge against abortion restrictions in Ohio since voters added abortion protections to the state constitution in 2023 .
Until the recent vote in Montana, the only obstacle was voting blocking abortion restrictions passed by Republicans has been since its entry into force A decision from 25 years ago which determined that Montana’s right to privacy extends to abortion.
Nelson, a former judge and lead author of the ruling, said the court has gradually become more conservative since then. He noted that another future state justice, Katherine Bidegaray, was supported by abortion rights advocates.
“The dynamics of the court are going to change,” Nelson said after the election. “But the Chief Justice has one vote, just like everyone else.”
Swanson, Montana’s recent chief justice, has said throughout his campaign that he will make decisions on a case-by-case basis. He too – he reprimanded his opponentJerry Lynch for respecting a court ruling protecting abortion. Swanson called such statements a signal to liberal groups.
At least eight cases are pending in Montana courts challenging state laws restricting access to abortion. Martha Fuller, president and CEO of Planned Parenthood Advocates of Montana, said recent constitutional language that goes into effect in July could further strengthen these cases, but the outcome of the judicial elections leaves room for uncertainty.
Two outgoing state judges did so previous affiliations with the Democratic Party. Fuller stated that they consistently support abortion as a privacy right. “One of those people is being replaced by someone we don’t know if he’s going to keep it up,” she said. “There will be a period when we will try to see what positions different judges will take on these issues.”
These cases likely won’t end the abortion debate in Montana.
At the start of the legislative session in early January, Republican lawmakers, who have long called the state Supreme Court liberal, had already introduced eight bills on abortion and dozens of others aimed at reshaping the judiciary. Among them is A a bill aimed at making judicial elections biased.
Montana Senator Daniel Emrichthe Republican who asked for it bill entitled “Prohibit the dismemberment of a person and provide a definition of a person” – She said it was too early to know what restrictions anti-abortion lawmakers would push hardest.
Ultimately, he said, any recent proposed restrictions and consequences of a constitutional amendment would likely go to the state Supreme Court.
KFF Health News is a nationwide newsroom dealing with broadly understood journalism about health issues and is one of the main operational programs of KFF – an independent source of research, surveys and journalism in the field of health policy. Find out more about KFF.
Subscribe to the free morning KFF Health News briefing.
This article appeared for the first time KFF Health News and is republished here under a Creative Commons license.
YOU MAKE OUR WORK POSSIBLE.
