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In early August, Kansas voters resoundingly rejected a constitutional amendment that would have declared there was no state-based right to an abortion. One would think that a vote as decisive as this 59 percent–41 percent result would have been the end of the discussion. But opponents of abortion in Kansas and other states have another target this election season: their state supreme court.
There's a reason abortion opponents tried to rewrite the Kansas state constitution. In 2019, the Kansas Supreme Court ruled 6–1 that there is such a right in the state constitution, concluding that the constitution protects "the right to control one's own body, to assert bodily integrity, and to exercise self-determination." The ruling overturned a legislative ban on dilation and evacuation ("D&E") abortions. Equally important, it ensured that it would be incredibly difficult for state lawmakers to pass similar restrictions moving forward.
But conservatives are now seeking to reverse this ruling by changing who sits on the Kansas Supreme Court, despite overwhelming public support to keep access to abortion legal. In Kansas, the governor appoints justices for six-year terms, but if they wish to serve another term, they must win "retention" elections. This November, five of the six justices who upheld a right to abortion in Kansas are up for retention. Conservatives hope to seize the moment in this election to pack the court with conservative judicial activists.
This is hardly the first time that local conservative groups have targeted state supreme courts. But too often these campaigns fly under the radar. Perhaps most notably, opponents of marriage equality sought to punish members of the Iowa Supreme Court after it issued its 2009 ruling declaring same-sex marriage constitutional. The following year, a retribution campaign led to three of those justices losing their retention elections. It was the first time any Iowa judge had ever been removed through the retention process.
These fights are now playing out in multiple states. Anti-abortion lawmakers and groups are seeking to ban or at least restrict access to abortion as much as possible in as many places as possible in the wake of Dobbs. The Michigan Supreme Court, for example, recently ruled against efforts to block voters from considering a ballot initiative to add express abortion protections to the state constitution. That court has also ruled in favor of workers' rights and LGBTQ+ equality and has been an important check on partisan gerrymandering. Michiganders elect their supreme court justices, and conservatives are eager for partisan activists to take control of the court and reverse these decisions.
In Ohio, some lawmakers are trying to push through extreme laws, including a total ban on abortion and voter suppression to limit their accountability. A lower court judge recently blocked a six-week abortion ban, in a case that could end up before the Ohio Supreme Court. The Ohio Supreme Court also has exclusive jurisdiction over any questions of partisan gerrymandering, making it essential to protecting access to democracy in the state. This year, half the Court's seats are open and replacements will be selected through partisan elections. Conservatives are pushing to elect justices that will uphold their dangerous and restrictive laws—no matter how flagrantly they violate the Ohio constitution.
There are also extremely important Supreme Court races taking place in Illinois, North Carolina, and Montana that we must also prioritize in November. For many, Dobbs was a wake-up call that conservatives have been working for decades to take over the courts and fill them with extremist judges who will stop at nothing to fulfill their agenda. Certainly, the many Trump-appointed judges who have skirted clear readings of the law to protect him from investigations or to obstruct President Joe Biden's leadership further spotlight that judges and justices can be quite political and partisan, if not servants to the party that put them in power. We must be just as vigilant about protecting our state courts as we are committed to repairing the damage to our federal courts.
Alliance for Justice has a new hub for state courts to help voters learn how their state's highest jurists are appointed or selected and what role they can play in protecting them. Don't wait until the next Dobbs. We know the conservative playbook and we can do the work now to ensure our states' courts continue to protect justice for all and equality under the law.
Kelley Robinson is the executive director of the Planned Parenthood Action Fund.
Rakim H.D. Brooks is the president of Alliance for Justice Action Campaign and a public interest appellate lawyer.
The views expressed in this article are the writers' own.
