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Analysis

Targeting a Last Line of Defense for Reproductive Freedom: State Courts

State lawmakers are turning their sights to the courts that could protect abortion access now that Roe v. Wade has been overturned.

Last Updated: June 22, 2022
Published: June 22, 2022

Now that the Supreme Court has over­turned Roe v. Wade, red-state governors and legis­lat­ors across the coun­try are moving more aggress­ively than ever to roll back abor­tion access in their states. Under­pin­ning this push, however, is the begin­ning of a quieter campaign to target the courts that will hear cases chal­len­ging the consti­tu­tion­al­ity of these new restric­tions.

State supreme courts can inter­pret state consti­tu­tions to go further than the federal consti­tu­tion in estab­lish­ing and protect­ing rights. Indeed, 10 state high courts have already issued decisions find­ing greater protec­tions for abor­tion under their state’s consti­tu­tion or strik­ing down restric­tions that were upheld by the Supreme Court. (On June 17, Iowa’s supreme court over­turned its 2018 ruling that there was a funda­mental right to abor­tion under the state’s consti­tu­tion. Iowa’s anti-abor­tion governor has appoin­ted four new justices to the court since its previ­ous decision.) But decisions like these have made state supreme courts a target for manip­u­la­tion by anti-abor­tion governors and state legis­lat­ors.

Accord­ing to a new Bren­nan Center analysis, lawmakers in 25 states considered at least 73 bills between Janu­ary 1 and June 10 that would limit courts’ powers or make them more polit­ical. Of those bills, at least four have been enacted across three states. An addi­tional bill was placed on the Novem­ber ballot, and another 21 passed at least one cham­ber of the legis­lature or had some sort of commit­tee action, such as a hear­ing or commit­tee vote.

Over a dozen of this year’s bills were targeted at repro­duct­ive rights cases. Bills in at least eight states sought to ban abor­tion and expli­citly prohibit state offi­cials, includ­ing judges, from enfor­cing contrary state or federal court decisions. Other bills intro­duced in at least six states would have stripped state judges of their author­ity to hear cases seek­ing to stop the enforce­ment of bans modeled off Texas’s law S.B. 8, which allows private citizens to sue anyone who performs an abor­tion or “aids or abets them.” Still others would have allowed the impeach­ment or removal of judges who blocked a state’s restric­tions. And while only two such bills have been enacted in one state, many states have said they will come back for a special session should Roe be over­ruled this month.

By allow­ing state offi­cials to restrict indi­vidual rights and sidestep the courts, these bills would under­mine the crit­ical role courts are supposed to play in our consti­tu­tional system. 

Take the exper­i­ence in Oklahoma, where abor­tion has been outlawed in all but a few limited circum­stances even when Roe was still the law of the land. There, the state’s Repub­lican governor has signed five bans into law within the past 13 months. The fourth and fifth bans — both of which were signed last month — are modeled after Texas’s bounty hunter law and contain provi­sions prohib­it­ing courts in the state from hear­ing lawsuits seek­ing to stop the laws’ enforce­ment. And while Oklaho­ma’s high court has previ­ously blocked abor­tion restric­tions from going into effect as recently as Octo­ber 2021, the court has declined to tempor­ar­ily block the new bounty laws, instead order­ing the parties to file briefs in June and July.

Beyond limit­ing Oklahoma courts’ juris­dic­tion in abor­tion-related matters, lawmakers also got very close to putting a proposed consti­tu­tional amend­ment on the Novem­ber ballot that would have asked voters to replace the state’s nonpar­tisan commis­sion for vetting appel­late court judges with an 18-member commis­sion made up of state legis­lat­ors. The intent of the proposed amend­ment, accord­ing to the senate pres­id­ent, was to “give the governor more appoint­ments to put more anti-abor­tion justices on the state Supreme Court.”

Oklahoma isn’t the only state where oppon­ents of repro­duct­ive rights are trying to weaken access to abor­tion by politi­ciz­ing or manip­u­lat­ing the courts. 

In Montana, the state’s conser­vat­ive attor­ney general is fight­ing to get a legis­lat­ively referred state stat­ute on the Novem­ber ballot that would ask voters to elect state supreme court justices by district, as opposed to statewide. While district-based judi­cial elec­tions aren’t neces­sar­ily a bad thing, they could be used to gerry­mander the state supreme court. The proposal, which is wind­ing its way through the courts, is espe­cially concern­ing given that the attor­ney general and other state Repub­lic­ans have openly clashed with the court over the past year for being “too liberal.” The attor­ney general in partic­u­lar has called on the high court to over­turn its 1999 decision hold­ing that the state consti­tu­tion’s right to privacy includes a right of “procre­at­ive autonomy” — a decision he said was a “breath­tak­ing exer­cise in judi­cial activ­ism” and “mani­festly wrong.”

With the Supreme Court turn­ing back the clock on federal abor­tion protec­tions and many other import­ant rights, state courts are more import­ant now than ever. To ensure that they can serve as a check against efforts to restrict indi­vidual rights, these courts must be free from polit­ical inter­fer­ence.