The Battle for Abortion Access Heads to State Courts

State supreme courts are shaping the future of abortion access in the U.S. Here’s how we can strengthen them.

Abortion-rights protesters march around the Indiana State house during the demonstration. (Photo by Jeremy Hogan/SOPA Images/LightRocket via Getty Images)

Without the protections of Roe v. Wade, state laws—rather than federal law—now regulate whether people across the nation can receive abortion care. This grim moment also means that state supreme courts will be much more crucial in deciding state laws on abortion access.

In the wake of Dobbs v. Jackson, state legislatures have increased power in crafting their own abortion regulations—subject to their state constitutions. The resultant overwhelming flood of litigation nationwide has allowed at least eight states to succeed in enforcing abortion bans, and more restrictions are on the way. 

State court judges, who shape the country we live in every day, are shaping the future of abortion. The overturn of Roe marks a chance to better understand the important role state courts play in determining individual rights, including the right to abortion. 

Re:power, an organization dedicated to a future of inclusive politics, challenges us to “transform how we think about power, who holds it and how we wield it in our communities.” At a conference in June, the organization encouraged the public to take a hard look at the power of state courts and speak truth to it. “We stand the most to lose or gain in this fight,” said Karundi Williams, re:power’s executive director. “The only way out is through.” 

The Role of State Courts

State supreme courts have been a part of the conservative agenda for at least a decade—and activists say progressives are only just catching up. According to re:power, 95 percent of all court cases are decided at the state level, including criminal cases or lawsuits involving state laws, family law issues and state constitutional rights. This amount of decision-making power reveals how each state court can “advance or undermine decades of organizing and our rights in a matter of two hours,” in the words of Carin Schiewe, re:power’s program strategist.

As the highest court in each state, one of the main tasks of state supreme courts is to hear appeals from lower courts. According to re:power, unless the case is appealed to the federal level, they have the final word on appeals and can set new precedents. Currently, state supreme courts are deliberating abortion bans, voting rights, ballot counting and equal marriage among other issues—some of the most crucial issues in the current moment.

Another powerful role of state supreme courts is interpreting state constitutions, which are supposed to protect the basic rights of a state’s population. Constitutions are living documents that can change over time—but these changes depend on the interpretation of individual judges sitting on the bench. The overturning of Roe threw into relief how the U.S. Supreme Court has morphed into a politicized body—and the same can be true of state supreme courts.

State Courts Are Under Attack

The importance of state courts and their decision-making power has brought them under attack by the far-right for at least a decade. Re:power outlined three areas of attack: attacks on judges, legislative attacks and electoral attacks.

These manifest in a variety of ways. While courts are supposed to be off limits for politics, right-wing agitators have used harassment tactics against judges who try to protect civil rights, going as far as to run impeachment campaigns if their decisions don’t fall in line with the conservative agendas. Bills have been introduced to undermine the power of state supreme courts, by changing the way judges are selected and gerrymandering judicial districts. Within the 39 states that elect their judges, judicial elections have been flooded with dark money and last minute attack ads. In the face of these attacks, state courts need critical attention within campaign planning. 

Centering the role of state supreme courts will allow us to navigate this moment in which so many crucial civil rights are at risk, and will help us protect and expand the basic civil rights that form the core of our democracy. In keeping with these goals, re:power launched the following action checklist and resources guide to help ensure that state courts stay on our radar:

Get to Know:

  1. Current constitutional restrictions and rights for abortion care in your state
  2. Your state constitution
    • What protections are already in place for rights extending beyond access to abortion care? Where do rights need to be strengthened?
  3. Your state supreme court 
    • Who sits on the bench?
    • How have they decided on major cases? 
    • How are justices selected
    • How are justices evaluated and held accountable? 
  4. Your state landscape
    • Are organizations already working on the ground to strengthen and diversify the courts? Who are they and what do they stand for? 
    • Who are the opponents of democracy on the ground who are working to undermine the courts? 
    • Are there cases moving forward in the courts on abortion access, gender justice, redistricting, voting rights or other issues? 
    • Are there ballot initiatives moving forward to expand or eliminate constitutional rights by amending your state constitution or undermining the power of the courts?
    • Is there legislation moving forward to expand or eliminate rights in your state constitution?

Identify Opportunities and Challenges

  1. Judicial elections
    • Do you have judicial elections in the fall?
    • Who are the candidates?
    • What do they stand for?
    • Are judicial candidates that stand for democracy under attack by the Right? 
  2. Legislation moving forward
    • Are there bills moving forward to undermine the power of the courts?
    • Are there bills moving forward to strengthen and diversify the courts?  

Take Action: Ways to get State Courts on the Power Map

  1. Engage your community
  2. Vote in Judicial Elections
  3. Get Involved
    • Get involved in legislative campaigns to protect, strengthen and diversify the courts.
  4. Support Judicial Candidates
    • Cultivate and support judicial candidates who reflect the communities they serve and stand for justice.

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Michelle Moulton (she/they) is a former editorial intern with Ms. and a graduate of Smith College, where she majored in the study of women & gender and sociology. Her beats include reproductive justice, LGBTQ rights, domestic violence intervention and pop culture.