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The Power of State Courts in Securing Abortion Access: ‘It’s Time to Give Them Center Stage’

State courts continue to fly under the radar, despite their importance and potential for protecting the right to choose.

November 9, 2021
View the entire Abortion Rights Are Essential to Democracy series

The Supreme Court’s early Septem­ber ruling on Texas law S.B. 8 was a chilling moment but also a clari­fy­ing one. In a single para­graph, a 5–4 major­ity allowed a law banning most abor­tions to remain in effect while legal chal­lenges wind their way through the courts. The Court is now consid­er­ing again whether to block the law, but its abdic­a­tion of judi­cial respons­ib­il­ity has been a wake-up call. Progress­ives are giving new atten­tion to reform­ing the Supreme Court—but it would be a mistake to stop there. We also need to pay greater atten­tion to state courts and state consti­tu­tions as a prom­ising, under­ap­pre­ci­ated, and frequently threatened venue for protect­ing rights.

Why focus on state courts? A key feature of our federal system is that state courts get to inter­pret their own state’s consti­tu­tion and other laws. There­fore, it’s state supreme courts, not the Supreme Court, that get to be the final word in inter­pret­ing the mean­ing of state consti­tu­tional provi­sion­s—and they can inter­pret them to go farther than the federal consti­tu­tion in estab­lish­ing and protect­ing rights. In other words, when it comes to protect­ing civil and human rights, the U.S. Consti­tu­tion func­tions as a floor, not a ceil­ing. With state consti­tu­tions, you can build a skyscraper.

This isn’t news to repro­duct­ive rights litig­at­ors, who have increas­ingly looked to state courts as prom­ising venues. Consider Kansas and Iowa, where in the past three years state supreme courts have issued rulings protect­ing abor­tion right­s—all under their state consti­tu­tions. Yet the broader progress­ive move­ment has paid surpris­ingly little atten­tion to state courts—not who sits on them nor how to defend them when their rulings prompt polit­ical attacks.

It’s now a well-trod­den story that for decades progress­ives ceded atten­tion about the import­ance of the courts to the right. The triple-punch of Pres­id­ent Trump’s Supreme Court nomin­ees—and the polit­ical hard­ball that got them each a life­time seat on our nation’s highest court—has been a belated wake-up call for many. But even as federal judi­cial nomin­a­tions attract greater atten­tion on the left, state courts continue to largely fly under the radar—even while conser­vat­ive groups pour resources into build­ing state supreme court major­it­ies.

For example, even though judi­cial elec­tions are widely used in the states, there’s been little by way of a “progress­ive judges” move­ment akin to what we’ve seen in elec­tions for prosec­utors. Nor have progress­ives regu­larly sought out spots on power­ful judi­cial nomin­at­ing commis­sions, which are used in many states where governors appoint judges to vet candid­ates and provide a bind­ing short­l­ist. And there’s been little atten­tion given to the stark lack of diversity on state supreme courts across the coun­try, where women hold only 39 percent of state supreme court seats, people of color are completely absent from high court benches in 22 states, and justices with profes­sional back­grounds work­ing with poor and other margin­al­ized communit­ies are rarely found.

Equally troub­ling is what’s happened in many states when courts have issued rulings out of step with entrenched polit­ical interests. In 2019, for example, Alaska’s governor used his line item veto author­ity to strip $335,000 from the judi­ciary’s budget after the Alaska Supreme Court issued a ruling requir­ing state fund­ing of certain abor­tion services. It’s part of a broader trend where rulings on issues such as abor­tion rights, voting rights, educa­tion equity and death penalty abol­i­tion have all put targets on state courts in recent years—in­clud­ing impeach­ment campaigns, efforts to strip away courts’ power, and moves to give politi­cians more control over judi­cial selec­tion.

From Janu­ary through May, at least 26 states intro­duced at least 93 bills that would politi­cize or under­mine the inde­pend­ence of state courts. All too often, these efforts have flown under the radar with little to no mobil­ized oppos­i­tion.

Of course, state courts can only go so far in filling the repro­duct­ive rights chasm that the U.S. Supreme Court has opened. To state the obvi­ous, state courts in many of the places most likely to attack repro­duct­ive rights may not have judges ready to defend them. Cour­ageous rulings can also prompt back­lash, includ­ing efforts to amend state consti­tu­tion­s—an anti-abor­tion amend­ment is set to go on the Kansas ballot in 2022—or to target justices up for reelec­tion or reappoint­ment. Fears of back­lash can itself also make state courts timid. But with federal rights increas­ingly at risk, it makes sense to use every avail­able tool and to invest in build­ing fair courts that can be on the vanguard of protect­ing repro­duct­ive rights.

The decades since Roe v. Wade make clear that courts can’t be the only path to achiev­ing repro­duct­ive justice—but also that we won’t have repro­duct­ive justice without them.  State courts have usually been after­thoughts in these strategies. It’s time to give them center stage.