Protesters rally in Scottsdale after the Arizona Supreme Court ruled than an 1864 abortion ban was enforceable.Frederic J. Brown/AFP/Getty
In overturning Roe v. Wade, the US Supreme Court gave state-level judges enormous new power to decide the reproductive fates of tens of millions of people of childbearing age. With the national right to abortion wiped out, states were forced to decide if abortions were legal for their residents as pre-Roe “zombie” laws, trigger bans, and state constitutional protections whipsawed pregnant people trying to receive care. And now, in ten states, abortion-rights ballot measures are going before voters.
It has been up to state courts to sort out this increasingly convoluted mess. Could a 150-year-old law criminalizing abortion be used to prosecute modern-day doctors? The Arizona Supreme Court decided it could. Do frozen embryos count as “children”? The Alabama Supreme Court said so in February. And does a state constitution’s guarantee of “life, liberty, and the pursuit of happiness” protect a woman’s right to end her own pregnancy? Last month, a North Dakota state judge decided yes. Meanwhile, over the last year, state supreme courts in Iowa, Florida, and Georgia have all allowed six-week bans on abortion to take effect.
Yet unlike their federal counterparts, these black-robed figures don’t enjoy lifetime appointments. Two years after Dobbs, state supreme courts have become among the most critical battlegrounds of the 2024 elections. Twenty-two states allow voters to elect their state supreme court justices, and several more let voters decide whether to retain justices appointed by the governor. Anti-abortion forces have long understood that controlling who sits on state high courts is critical to cementing and expanding their far-right agenda. Indeed, it was only after the GOP governors of Iowa and Florida packed their supreme courts with conservative justices did those courts overturn prior state precedents and uphold draconian abortion bans.
“State courts have been an under-resourced and overlooked tool for reproductive and gender equity.”
Abortion rights supporters are finally seeing the light. “State courts have been an under-resourced and overlooked tool for reproductive and gender equity,” says Christina Uribe, director of the Gender Equity Action Fund, which channels money to local progressive and reproductive-rights advocacy groups that educate voters about state-level judicial races. “There’s a lot of opportunity here, and a lot of work left to do to make sure people understand the power that state courts have over their daily lives and the power they have to decide who sits on the bench.”
Progressives made the most of that opportunity in last year’s Wisconsin Supreme Court special election, which shattered turnout and spending records in a battle for ideological control of the highest court in a crucial swing state. The victory of an openly pro-choice justice, Janet Protasiewicz, swung control of the court leftward for the first time in 15 years, with consequences for both abortion access and voter rights. The court has the final say over Wisconsin’s congressional maps, for instance, which have been heavily gerrymandered to favor the GOP.
Advocates like Uribe are hoping that concerns over reproductive rights will have the same impact this........