Arizonans appear poised to enshrine abortion protections in their state constitution, but judges, not voters, may have the last word. The battleground state is one of several where right-leaning groups are backing conservative judges as they prepare to challenge in state supreme courts newly passed ballot measures protecting the procedure.
These historically overlooked judicial races — in places like Arizona, Michigan, Montana, Ohio, and Texas — are attracting millions of dollars in donations this cycle from national and state groups on both sides of the abortion-rights fight, including Planned Parenthood, the American Civil Liberties Union, SBA Pro-Life America, and National Right to Life.
In Arizona, progressive groups are holding events and knocking on doors to make GOP-appointed state Supreme Court Justices Clint Bolick and Kathryn King the first in state history to lose a retention vote. The pair ruled this year to uphold an 1864 law criminalizing nearly all abortions.
“That law was created before women had the right to vote in Arizona, or anywhere. They literally made a law without us, about us,” said Jodi Liggett, the founder of Arizona Center for Women’s Advancement, who has worked for both Republican and Democratic state officials. “People need to understand that their vote on [judicial retention] is absolutely just as important as their vote on [the abortion-rights ballot measure]. We can’t have a runaway judiciary.”
Both sides of the abortion debate acknowledge that for all the top-of-the-ticket rhetoric about what former President Donald Trump or Vice President Kamala Harris would do if elected, state high court justices are likely to have a far more direct role in shaping access to the procedure. State supreme courts gained unprecedented power over reproductive medicine following the Dobbs decision, which eliminated federal protections for abortion and kicked the issue to states.
Last year, races in Wisconsin and Pennsylvania, which once flew under the radar, took on national import as progressives made abortion their leading argument. Even if courts don’t strike down abortion-rights ballot measures as conservatives hope, state justices can decide how the referendums are interpreted and implemented, and are expected to rule on whether laws and regulations like mandatory waiting periods will stand.
“If the ballot measures pass, there’s a lot of interest in challenging them as vague and misleading, and that can be an area for an injunction or other court action,” said Kristi Hamrick, the chief policy strategist with Students for Life of America. “And that’s how we went from Roe to Dobbs — we ended up in court again and again and again. So on election night they might say, ‘Ha ha, we won, you lost.’ And my response will be: ‘We’ll see.’”
In Texas, progressives formed the “Find Out PAC” to run ads against three of the conservative justices who ruled to deny Kate Cox an abortion for her non-viable, health-threatening pregnancy. In Michigan, the ACLU is spending $2 million to promote two justices likely to uphold abortion protections voters adopted a few months after the fall of Roe.
In Ohio, both abortion-rights and anti-abortion groups are going door-to-door talking about the importance of the state Supreme Court elections as the court prepares to rule on how the amendment passed by voters in 2023 should be interpreted.
“People think, ‘Well, I voted on it. It’s a settled issue,’” said Mike Gonidakis, president of Ohio Right to Life. “The court, no matter if it’s liberal or conservative, can’t overturn what the voters have put into the state constitution. That’s not going away. But they can interpret what it means, and what the legislature can do in the future — or can’t — and that’s important.”
In Montana, the abortion-rights amendment will share the ballot with state supreme court candidates, leading groups like the national ACLU and the ACLU of Montana to pour over $1 million into a voter education campaign on the latter. There are two vacant seats on the court — a rare occurrence — that will likely be key to determining the future of abortion access in the state.
“As we saw with Dobbs, who is sitting on the bench and interpreting a constitution is almost as important as what is contained in the constitution itself,” said Alex Rate, legal director at the ACLU of Montana.
The surge of attention on state supreme court races is evident across Arizona’s sunbaked street corners and freeway off ramps, where black-and-white signs, squeezed in between colorful placards for House, Senate and presidential candidates, remind voters that “Bolick bans abortion