In the wake of the Supreme Court’s 2022 decision to overturn Roe v. Wade, many states across the U.S. held elections in which voters expressed their clear support for abortion rights. State ballots were flooded with proposals to protect abortion access, and voters overwhelmingly chose candidates who pledged to uphold reproductive rights. However, an emerging concern has cast a shadow over this momentum: the very judges elected to uphold these rights in the courts may not be as supportive of abortion access as voters hoped.
The issue of abortion rights has been at the forefront of American political discourse in recent years, and its influence has spread into state courts, where key decisions on reproductive rights are now made. While voters in multiple states have shown strong support for abortion rights at the ballot box, their choices have led to the election of state judges whose rulings may not align with the popular will, creating a disconnect between what voters want and what judicial decisions are made.
The Disconnect Between Voters and Judges
Abortion rights have become a central point of contention in U.S. politics, particularly after the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022, which overturned Roe v. Wade and allowed individual states to regulate abortion. In many states, abortion access was immediately restricted or banned entirely. However, other states passed laws or constitutional amendments aimed at protecting abortion rights, often through voter referendums.
Voters in several states have resoundingly chosen to protect abortion access in their state constitutions. In Michigan, for example, voters approved a ballot proposal to protect abortion rights. Similarly, in California and Vermont, voters endorsed measures to enshrine abortion rights in their state constitutions, ensuring a legal framework for reproductive freedoms in the aftermath of the Supreme Court’s decision.
However, while these state-level referendums and elections have largely favored abortion rights, concerns are now emerging about how judges, especially those elected in partisan races, will interpret and apply these laws. Many states elect their judges rather than appoint them, which can lead to the election of judges whose views align more with political ideologies than with the preferences of the public.
Judicial elections can be influenced by political endorsements, campaign financing, and party affiliations, which means voters might unknowingly elect judges who do not share their views on abortion. These judges, once in office, have the power to make binding decisions that can either uphold or strike down laws that protect reproductive rights. The growing realization that judicial elections may lead to the election of judges who oppose abortion rights is a troubling prospect for supporters of reproductive freedom.
Examples of Judges in Favor of Restrictions
While voters may have expressed clear support for abortion rights, some of the judges elected in the wake of the Dobbs decision have shown a preference for restricting abortion access. For instance, in states like Ohio, Wisconsin, and Pennsylvania, voters have supported abortion rights on their ballots, but the judicial landscape is complicated by the presence of conservative-leaning judges.
In Ohio, where abortion access was under threat, voters passed a constitutional amendment protecting abortion rights. However, the state’s courts, including judges appointed by Republican governors, have remained a roadblock for abortion access, with several judges expressing opposition to abortion rights. Similarly, in Wisconsin, a court with a conservative majority has overturned attempts to protect abortion access, despite the fact that the majority of voters in the state support abortion rights.
These examples illustrate a key issue in judicial elections: judges often have the power to overrule voter-approved protections for abortion rights. This is especially problematic in states where judicial candidates are backed by anti-abortion groups and organizations that advocate for restrictions on reproductive rights. When these judges are elected, they may use their positions to roll back protections voters have explicitly voted for, creating a scenario where the will of the people is subverted by the rulings of an unelected judiciary.
The Role of Judicial Activism and Interpretation
At the heart of the debate surrounding state judges and abortion rights lies the issue of judicial activism and how judges interpret state constitutions. Some judges may believe that their role is to interpret the law strictly as it is written, without regard for the broader political or social context. Others may interpret the constitution more flexibly, considering the evolving values of society.
Conservative judges, particularly those aligned with the anti-abortion movement, often argue that the state constitution does not guarantee abortion rights, and thus, they may be inclined to rule against abortion access even if the majority of voters in the state support it. This approach is evident in states like South Carolina, where a conservative-leaning court has repeatedly upheld restrictions on abortion, despite the fact that a majority of South Carolinians support abortion access.
On the other hand, progressive judges may approach these issues with an understanding of the social and political shifts in public opinion, interpreting the state constitution in a way that aligns with evolving norms on reproductive rights. But these judges are increasingly outnumbered by their conservative counterparts in many state courts.
The Challenges of Protecting Abortion Rights at the State Level
Protecting abortion rights at the state level requires a multi-pronged approach, and electing judges who support these rights is just one piece of the puzzle. Advocacy organizations and activists are focusing on efforts to educate voters about the importance of judicial elections, encouraging people to vote not only for political candidates but also for judges who align with their views on reproductive rights.
However, even with heightened awareness of the role of judges, there are significant challenges in protecting abortion access through state courts. Many judicial races are low-profile, meaning voters may not fully understand the positions of judicial candidates on issues like abortion. This can make it difficult for voters to make informed decisions, especially when campaign advertisements or endorsements may not clearly address a candidate’s stance on abortion rights.
Additionally, the political polarization of state judicial races complicates the matter. In many states, judicial candidates are often aligned with the political party in power, and this partisanship can affect their rulings on critical issues like abortion. This situation has led to calls for reforms in how judges are selected, with some advocates pushing for nonpartisan judicial races or even the appointment of judges rather than elections, in order to reduce the influence of political ideologies on judicial decision-making.
Moving Forward: What Can Be Done?
As states continue to grapple with the aftermath of Roe v. Wade, the issue of abortion rights in state courts remains a significant concern. Voters have made it clear that they want to protect reproductive freedoms, but the growing influence of partisan judicial elections and conservative-leaning courts poses a major challenge.
To address this issue, there must be a renewed focus on judicial reform. Efforts to educate voters about the power of state courts and the importance of electing judges who uphold reproductive rights are crucial. Additionally, advocates for abortion access must work to ensure that judicial nominations and elections are not solely influenced by political ideology but by a commitment to upholding the will of the people.
Ultimately, the battle for abortion rights will not be won solely at the ballot box or in the state legislature. It will also depend on the ability to elect judges who will stand firm in protecting the rights of individuals, regardless of their personal or political beliefs. As the fight for abortion rights continues to unfold, ensuring that judges respect the will of the voters and protect reproductive freedoms will be critical to safeguarding the future of abortion access in the United States.