Republican Courts Could Sabotage the Ohio Abortion Vote
After Ohio voted to enshrine reproductive care access in the state’s constitution on Tuesday, abortion rights supporters are now a perfect 7-for-7 in ballot initiative fights since the Supreme Court overturned Roe v. Wade last year. Ohio has Republicans in control of all three branches of government, but the state’s voters still managed to approve a ballot initiative on reproductive rights. Meanwhile, abortion helped propel state lawmakers in Virginia to control of both chambers of the state Legislature—and fueled the reelection of Democratic Gov. Andy Beshear in Kentucky. Memes and tweets have circulated saying that if abortion were on the ballot in 2024 instead of Joe Biden, the race would be a done deal.
The depth of voter support for abortion rights is impressive, but celebrations of the success of abortion rights ballot initiatives overlook the next step in the conflict over reproductive rights: the war over the state Supreme Court judges charged with interpreting new constitutional amendments.
Consider how state judges could make a difference in the real-world impact of Issue 1, the measure just passed in Ohio. The success of that ballot measure seems to require strict scrutiny of any restriction on “an individual right to one’s own reproductive medical treatment,” including to make decisions on abortion, contraception, fertility treatment, and miscarriage care, before viability—and allows access for when a patient’s health or life is threatened thereafter. In theory, Ohio might have a hard time justifying many of its current restrictions—and outright abortion ban at six weeks—under Issue 1. But the people ultimately interpreting the new constitutional amendment are the judges of the Ohio Supreme Court. Republicans swept three open races for that court last year, giving conservatives a 4–3 edge on the court. When there is any ambiguity at all, expect Ohio’s court to resolve it in favor of abortion opponents—and to sign off on restrictions that seem to conflict with the language voters endorsed. Voters’ only recourse at that point will be to support Democrats when three Supreme Court seats with expiring terms—two currently held by Democratic judges and one by a Republican judge—are on the ballot next year.
In Florida, the state where the next blockbuster fight on abortion is set to unfold, things are even trickier, as the conservative state Supreme Court may stop voters from having a say in the first place. To date, Floridians Protecting Freedom, a reproductive rights group, is on track to collect the required 800,000 signatures needed before February to get an abortion rights ballot initiative before voters, and polling suggests that even with Florida’s 60 percent threshold for ballot measures, the effort stands a real chance of success.
But perhaps not in the state Supreme Court—which has five judges hand-picked by Gov. Ron DeSantis, the architect of the state’s six-week abortion ban. Attorney General Ashley Moody has asked the court—which seems set to overturn a state precedent recognizing state constitutional rights to abortion—to stop the ballot initiative in its tracks.
Florida law requires that the state Supreme Court ensure that ballot initiatives are clear and limited to a single subject. Moody insists that the proposed ballot initiative fails this test because doctors will abuse the definition of viability to allow abortion on demand—and that the meaning of “health” of the patient is unclear and could include mental health or emotional preferences for abortion. Similar misinformation failed to sway Ohio voters in the fight over Issue 1, but the Florida battle is different because the target audience is the conservative judges of the state Supreme Court. Even if the court angers voters, and if voters kick out sitting judges in retention elections, the appointment of new state Supreme Court judges is controlled almost entirely by the governor: were voters to reject one of the court’s current members in a retention election, DeSantis will get to pick again from another list compiled by a judicial nominating commission. That means the next real hope Florida voters will have on the judicial question will come in the 2026 governor’s race.
Elsewhere, state Supreme Court judges have been and will be crucial in the abortion battles that are still playing out. On Tuesday, Pennsylvania voters chose Dan McCaffery, an abortion rights supporter, for an open seat on the state’s Supreme Court, giving Democrats a 5–2 edge in a year where the court is considering the constitutionality of limits on abortion funding. In Wisconsin, Janet Protasiewicz handily won a race for the Wisconsin Supreme Court earlier this year thanks in part to making her position on abortion very clear. Last month, the Republicans that dominate the state’s heavily gerrymandered state Legislature at least temporarily backed off of a threat to impeach Protasiewicz, but the danger still looms. Another election will be held in 2025 that will decide the scales of power on that court.
State judges across the country will be a crucial issue in 2024, with 33 states electing judges, and roughly a quarter of all state high court judges on the ballot. Some of these races could dismantle existing state protections. In Montana, for example, where state precedent has protected abortion rights since 1998, state court elections might change the balance of power. The same is true of Kentucky, a state with a pending constitutional challenge to the state’s abortion ban, where one of the court’s four conservatives is retiring. And two of the states with the most consequential recent ballot initiatives, Michigan and Ohio, have key races to come. In Michigan, where Democrats hold a 4–3 edge, a Republican sweep of the state’s two high court elections could mean control of the court. Iowa, another state with abortion before the court, has a closely divided court—and one of Kim Reynolds’ nominees is on the ballot for retention.
Historically, state Supreme Court elections have not been high-profile affairs. Retention elections seemed automatic for incumbent judges. Partisan identity often trumped much else in states that leaned red or blue. Recent races, like Wisconsin’s, have broken this pattern, with record-breaking amounts of money funneled into state Supreme Court elections.
But 2024 races might be different because voters will be deciding on key up-ballot races on everything from control of Congress to the White House, and partisan identity may drive choices down the ballot, too.
That means that wins like Ohio’s Issue 1 are just the first round in conflicts about what state constitutions mean when it comes to reproductive rights. And if abortion rights supporters are complacent, state constitutional protections won’t mean much for long.