If You Care About Reproductive Rights, Keep a Close Eye on These Under-the-Radar Elections

But the recent spate of decisions is also a reminder of the importance of state judicial elections. For one thing, there is a real chance that voters will approve ballot initiatives only to see them gutted by state judges. The balance of power of courts in key states that have just passed a ballot initiative, including Michigan and Ohio, will be determined in November. States where constitutional challenges under existing provisions are ongoing, including Kentucky and Iowa, also have key judges facing election. Wisconsin, already the site of the most expensive state supreme court election on record, will host another battle after one of the state court’s Democratic judges announced she is stepping down.

It is state judges who will decide whether to narrow or eviscerate state protections. And it is voters who will decide whether judges will be accountable for unpopular decisions.

First, state courts can determine whether voters who write reproductive rights into the constitution will actually get their way. A state could recognize reproductive liberty in theory while a state court signs off on any number of restrictions. That, after all, was what happened across large swaths of the country when Roe v. Wade was still the law. In Oklahoma, after the fall of Roe, the state supreme court recognized a right to life-saving abortions and then upheld a 19th-century law allowing abortions only when a patient’s life is at risk.

Then there is the possibility that a state supreme court will hold that fetal constitutional protections override whatever reproductive right becomes part of state constitutions. Anti-abortion groups argue that the word “person” in key state constitutional provisions applies from the moment an egg is fertilized. That means, they argue, that liberal abortion policies are themselves unconstitutional because they deny fetal persons equal protection and due process of law. For years, some anti-abortion groups have argued that a fetal right to life is paramount—that is, even if a constitution protects reproductive rights, fetal protection would trump it.

To date, no state court has recognized constitutional fetal personhood, but it’s hard to imagine that will last forever. The Alabama Supreme Court, which has judges up for reelection this year, already recognized embryos as persons for the purpose of state wrongful death law, but the judges’ reasoning seemed much broader. Some read the Florida Supreme Court’s decision allowing a ballot measure on abortion to go forward as inviting a personhood-based challenge. Any number of other states have personhood language in their laws that an opportunistic court could use to reinterpret the constitution.




https://slate.com/news-and-politics/2024/04/arizona-abortion-ban-court-state-judicial-elections-reproductive-rights.html