In November, Montana voters safeguarded the right to abortion in the state\u2019s constitution. They also elected a new chief justice to the Montana Supreme Court who was endorsed by anti-abortion advocates.<\/p>\n
That seeming contradiction is slated to come to a head this year. People on polar sides of the abortion debate are preparing to fight over how far the protection for abortion extends, and the final say will likely come from the seven-person state Supreme Court. With the arrival of new Chief Justice Cory Swanson, who ran as a judicial conservative for the nonpartisan seat and was sworn in Jan. 6<\/a>, the court now leans more conservative<\/a> than before the election.<\/p>\n A similar dynamic is at play elsewhere. Abortion rights supporters prevailed on ballot measures in seven of the 10 states<\/a> where abortion was up for a vote in November. But even with new voter-approved constitutional protections, courts will have to untangle a web of existing state laws on abortion and square them with any new ones legislators approve. The new makeup of supreme courts in several states indicates that the results of the legal fights to come aren\u2019t clear-cut.<\/p>\n Activists have been working to reshape high courts, which in recent years have become the final arbiters of a patchwork of laws regulating abortions. That\u2019s because the 2022 U.S. Supreme Court\u2019s decision in Dobbs v. Jackson Women\u2019s Health Organization<\/em> overturned federal abortion protections, leaving rulemaking to the states.<\/p>\n Since then, the politics of state supreme court elections have been \u201csupercharged\u201d as fights around abortion shifted to states\u2019 top courts, according to Douglas Keith<\/a>, a senior counsel at the nonpartisan Brennan Center for Justice.<\/p>\n \u201cBecause we\u2019re human, you can\u2019t scrub these races of any political connotations at all,\u201d said former Montana Supreme Court Justice Jim Nelson. \u201cBut it\u2019s getting worse.\u201d<\/p>\n The wave of abortion litigation in state courts has spawned some of the most expensive state supreme court races in history, including more than $42 million<\/a> spent on the nonpartisan 2023 Supreme Court race in Wisconsin, where abortion access<\/a> was among the issues facing the court. Janet Protasiewicz<\/a> won the seat, flipping the balance of the court to a liberal majority.<\/p>\n In many states, judicial elections are nonpartisan but political parties and ideological groups still lobby for candidates. In 2024, abortion surfaced as a top issue in these races.<\/p>\n In Michigan, spending by non-candidate groups<\/a> alone topped $7.6 million for the two open seats on the state Supreme Court. The Michigan races are officially labeled as nonpartisan, although candidates are nominated by political parties.<\/p>\n An ad for the two candidates<\/a> backed by Democrats cautioned that \u201cthe Michigan state Supreme Court can still take abortion rights away\u201d even after voters added abortion protections to the state constitution in 2022. The ad continued, \u201cKyra Harris Bolden and Kimberly Thomas are the only Supreme Court candidates who will protect access to abortion.\u201d Both won their races.<\/p>\n Abortion opponent Kelsey Pritchard, director of state public affairs for Susan B. Anthony Pro-Life America,<\/a> decried the influence of abortion politics on state court elections. \u201cPro-abortion activists know they cannot win through the legislatures, so they have turned to state courts to override state laws,\u201d Pritchard said.<\/p>\n Some abortion opponents now support changes to the way state supreme courts are selected.<\/p>\n In Missouri, where voters passed a constitutional amendment in November to protect abortion access, the new leader of the state Senate, Cindy O\u2019Laughlin<\/a>, a Republican, has proposed switching to nonpartisan elections from the state\u2019s current model, in which the governor appoints a judge from a list of three finalists selected by a nonpartisan commission. Although Republicans have held the governor\u2019s mansion since 2017, she pointed to the Missouri Supreme Court\u2019s 4-3 ruling in September that allowed the abortion amendment to remain on the ballot and said courts \u201chave undermined legislative efforts to protect life.\u201d<\/p>\n In a case widely expected to reach the Missouri Supreme Court, the state\u2019s Planned Parenthood clinics are trying to use the passage of the new amendment to strike down Missouri\u2019s abortion restrictions, including a near-total ban. O\u2019Laughlin said her proposal, which would need approval from the legislature and voters, was unlikely to influence that current litigation but would affect future cases.<\/p>\n \u201cA judiciary accountable to the people would provide a fairer venue for addressing legal challenges to pro-life laws,\u201d she said.<\/p>\n Nonpartisan judicial elections can buck broader electoral trends. In Michigan, for example, voters elected both Supreme Court candidates nominated by Democrats last year even as Donald Trump won the state and Republicans regained control of the state House.<\/p>\n In Kentucky\u2019s nonpartisan race, Judge Pamela Goodwine, who was endorsed by Democratic Gov. Andy Beshear, outperformed her opponent even in counties that went for Trump, who won the state. She\u2019ll be serving on the bench as a woman\u2019s challenge to the state\u2019s two abortion bans makes its way through state courts.<\/p>\n Partisan judicial elections, however, tend to track with other partisan election results, according to Keith of the Brennan Center. So some state legislatures have sought to turn nonpartisan state supreme court elections into fully partisan affairs.<\/p>\n In Ohio, Republicans have won every state Supreme Court seat since lawmakers passed a bill in 2021 requiring party affiliation to appear on the ballot for those races. That includes three seats up for grabs in November that solidified the Republican majority on the court from 4-3 to 6-1.<\/p>\n \u201cThese justices who got elected in 2024 have been pretty open about being anti-abortion,\u201d said Jessie Hill, an attorney with the American Civil Liberties Union of Ohio, who has been litigating a challenge to Ohio\u2019s abortion restrictions since voters added protections to the state constitution in 2023.<\/p>\n Until the recent ballot measure vote in Montana, the only obstacle blocking Republican-passed abortion restrictions<\/a> from taking effect had been a 25-year-old decision<\/a> that determined Montana\u2019s right to privacy extends to abortion.<\/p>\n Nelson, the former justice who was the lead author of the decision, said the court has since gradually leaned more conservative. He noted the state\u2019s other incoming justice, Katherine Bidegaray, was backed by abortion rights advocates.<\/p>\n \u201cThe dynamic of the court is going to change,\u201d Nelson said after the election. \u201cBut the chief justice has one vote, just like everybody else.\u201d<\/p>\n Swanson, Montana\u2019s new chief justice, had said throughout his campaign that he\u2019ll make decisions case by case. He also rebuked his opponent<\/a>, Jerry Lynch, for saying he\u2019d respect the court\u2019s ruling that protected abortion. Swanson called such statements a signal to liberal groups.<\/p>\n At least eight cases are pending in Montana courts challenging state laws to restrict abortion access. Martha Fuller, president and CEO of Planned Parenthood Advocates of Montana, said that the new constitutional language, which takes effect in July, could further strengthen those cases but that the court\u2019s election outcome leaves room for uncertainty.<\/p>\n The state\u2019s two outgoing justices had past ties to the Democratic Party<\/a>. Fuller said they also consistently supported abortion as a right to privacy. \u201cOne of those folks is replaced by somebody who we don\u2019t know will uphold that,\u201d she said. \u201cThere will be this period where we\u2019re trying to see where the different justices fall on these issues.\u201d<\/p>\n Those cases likely won\u2019t end the abortion debate in Montana.<\/p>\n As of the legislative session\u2019s start in early January, Republican lawmakers, who have for years called the state Supreme Court liberal, had already proposed eight bills regarding abortion and dozens of others aimed at reshaping judicial power. Among them is a bill to make judicial elections partisan<\/a>.<\/p>\n Montana Sen. Daniel Emrich<\/a>, a Republican who requested a bill titled<\/a> \u201cProhibit dismembering of person and provide definition of human,\u201d said it\u2019s too early to know which restrictions anti-abortion lawmakers will push hardest.<\/p>\n Ultimately, he said, any new proposed restrictions and the implications of the constitutional amendment will likely land in front of the state Supreme Court.<\/p>\n\n KFF Health News<\/a> is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF\u2014an independent source of health policy research, polling, and journalism. Learn more about KFF<\/a>.<\/p>\nUSE OUR CONTENT<\/h3>\n