Post-Roe abortion battle draws attention to state judicial elections, new legal strategies

WASHINGTON – When thousands of protesters gather Sunday for this year's National Women's March, the site of the rally may say as much about the state of the abortion rights movement as any sign they hold aloft or chant they call out.

The decision to march on Madison, Wisconsin, was intended to underscore the fact that after last year's Supreme Court decision overturning Roe v. Wade, the nation's abortion battle has shifted to state capitals. And that, in turn, has led to a greater focus on state judicial elections, especially when seats open up on state supreme courts.

Wisconsin is home to what has become a closely watched Supreme Court race.

"The political landscape has so fundamentally changed," said Rachel O'Leary Carmona, executive director of the Women’s March, who noted that there is still a lawsuit pending in Wisconsin over the state's 1849 ban on abortion. "Writ large, the Wisconsin ban will be decided by the Supreme Court, which will be decided by the people of Wisconsin."

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Advocates supporting abortion rights, meanwhile, have been raising arguments in state courts that wouldn't work at the federal level – and they have scored some early wins, even in conservative states. That's prompted a backlash from anti-abortion groups, some of whom are holding their own march on Friday to push for further restrictions.

"It took us 50 years to overturn Roe v. Wade in the United States Supreme Court. We're not going to get all these laws in effect in a day," said Katie Glenn, state policy director at Susan B. Anthony Pro-Life America, an anti-abortion group. "Courts matter because they can either become a veto on the legislature and invalidate the will of the people or they can uphold these laws and say this is an issue for the elected branches."

Supreme Court's decision shifted abortion battle to state courts  

• Two marches are planned this weekend on what would have been the 50th anniversary of Roe v. Wade. Anti-abortion groups will march on Washington, D.C., on Friday. On Sunday, the Women's March will take place in Madison, Wisconsin. Groups on both sides are focused on legislative and legal action unfolding in state capitals.

• Because so much attention has shifted to state courts, which are deciding whether to allow or block state abortion laws, there has been an increased focus on state supreme court elections. That has been particularly true this year in Wisconsin, where the court's current 4-3 conservative majority is at stake.

• Abortion rights advocates are raising arguments in state courts that won't fly at the U.S. Supreme Court. Some lawsuits, for instance, rely on guarantees of privacy included in state constitutions –  a right not explicitly included in the U.S. Constitution.

Abortion may put new emphasis on state supreme court justice races

Most states hold an election of some kind for their top courts, and generally, those contests receive little attention. The question is whether a bevy of state-based litigation over abortion in the wake of the Supreme Court's ruling last year will change that.

Three judges and a former Wisconsin Supreme Court justice are running for a seat on the state's highest court in a nonpartisan primary that will take place next month and a general election in April. The race has put the court's current 4-3 conservative majority in play at a time when it may need to address major questions on abortion and redistricting.

Pennsylvania will fill a seat on its high court in November and three seats are up in Ohio next year.

If abortion winds up playing a big role in those races then it will be paired alongside another issue that has frequently bounced between the U.S. Supreme Court, state legislatures and state courts: redistricting. Several groups that focus on how legislative boundaries are drawn have been paying attention to state judicial elections for years.

"From abortion and reproductive rights to voting fairness, American life as we know it is at stake in every state judicial election," said Eric Holder, the chairman of the National Democratic Redistricting Committee and a former attorney general during the Obama administration. "By attempting to fill state supreme court benches with ideologues, Republicans are going down a dangerous path that will reduce the independence of our courts, reduce respect for them, and weaken our system of checks and balances."

Republicans accuse Democrats of playing the same game. Andrew Romeo, a spokesman for the Republican State Leadership Committee, said his group is battling "the left’s sue until it’s blue gerrymandering playbook" and said it is closely watching the Wisconsin race "for opportunities to ensure it is won by a strong conservative who will uphold the constitution and rule of law instead of the liberal activist candidates running to gerrymander congressional maps in favor of Democrats.”

How abortion advocates are changing tactics in state courts

In South Carolina, reproductive rights advocates challenged the state's ban on most abortions after six weeks of pregnancy on the theory that the law violated the state constitution's explicit prohibition on "unreasonable invasions of privacy." In a 3-2 ruling earlier this month, the state's highest court agreed with that argument.

"We hold that our state constitutional right to privacy extends to a woman's decision to have an abortion," the state's highest court ruled on Jan. 5.

In Roe, the 1973 decision that established a constitutional right to abortion, a 7-2 majority of the Supreme Court said that the 14th Amendment's guarantee of liberty included a right to privacy that protects a person's decision to end a pregnancy. The court reiterated that holding 19 years later in Planned Parenthood v. Casey. But the word "privacy" isn't explicitly included in the Constitution and the court's current conservative majority took a different view of its meaning in its decision last year.

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Another argument being hashed out in state courts is whether state guarantees of equal protection prohibit abortion restrictions because those laws discriminate against women. In the U.S. Supreme Court's decision in June, Associate Justice Samuel Alito wrote that those arguments are "squarely foreclosed" in federal courts by precedents that "establish that a state’s regulation of abortion is not a sex-based classification." But the equal protection theory won the day last fall in a trial court in Michigan, which invalidated a 1931 law banning abortion.

Some states "have much clearer language about privacy or equal protection when it comes to abortion," said Mary Ziegler, a law professor at the University of California, Davis. But that doesn't mean that abortion rights groups will win in every state.

"It's going to depend a lot on court composition," she said, "and the upshot of that is likely to be people putting more money and effort into state supreme court elections."

Contributing: Molly Beck, Milwaukee Journal Sentinel

This article originally appeared on USA TODAY: Post-Roe abortion battle draws attention to state judicial elections