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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 24, 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.