In Ohio, a highly partisan fight over three state supreme court seats could determine the political direction of the court on a slew of important issues – particularly abortion.
With the US supreme court increasingly handing issues such as voting rights, abortion, gun rights and gerrymandering back to the states, state supreme court races are becoming more important than ever.
Few states illustrate how political these courts are becoming better than Ohio, where justices’ party affiliation will be listed on the ballot for the first time in the 8 November election, and where the justices on that court will soon determine the fate of the state’s six-week abortion ban that has been blocked and unblocked by lower courts since Roe v Wade was overturned early in the summer. Abortion is currently legal in the state up to 22 weeks, as the ban is being litigated.
As a result of the stakes, more cash is also pouring into state supreme court races around the country from political action committees associated with the national parties. Fair Courts America, a Pac associated with the Republican party, has pledged $22.5m for state supreme court races this election cycle, to support conservative judicial candidates in Kentucky, Illinois, Louisiana, Michigan, North Carolina, Ohio and Texas.
In Kentucky, that same Pac has donated $1.6m to three conservative judges vying for election. One of those judges, Joe Fischer, is a former Republican congressman who was the key sponsor of the state’s trigger ban on abortion that went into effect when Roe was overturned, as well as an anti-abortion referendum that’s being put to Kentucky voters next week.
“People used to spend all their time looking at the federal constitution for protections, particularly when it came to individual rights. But now the US supreme court is basically saying these matters are better left resolved in the state courts and their state constitutions,” explains Bill Weisenberg, a former assistant executive director of the Ohio State Bar Association.
In Ohio, after Roe fell, ending the federal constitutional right to abortion, the state implemented a ban on abortion after six weeks of pregnancy. That ban is currently being blocked by a lower state court, but ultimately, it will land with the state supreme court. And the election of certain justices will be pivotal in determining the future of the ban.
The seven-justice Ohio supreme court currently has four Republican justices and three Democratic justices. The current chief justice, Maureen O’Connor, a Republican, is not seeking re-election this year because of age limits, so two other sitting justices, Republican Sharon Kennedy and Democrat Jennifer Brunner, will battle it out to replace her in the top spot. Two incumbent Republican justices, Pat DeWine and Pat Fischer will face Democratic challengers Marilyn Zayas and Terri Jamison, for seats on the court.
O’Connor, the chief justice who is standing down, was a Republican-affiliated judge who was happy to break with the party line on issues such as gerrymandering. She has never openly indicated where she stands on abortion.
But all three Republican justices up for election on Tuesday have stated on candidate surveys that they believe there is no constitutional right to abortion, according to local news, meaning their elections could strike a fatal blow to abortion rights in Ohio.
They also came under fire in September for attending a Trump rally where the former president repeated baseless claims about the 2020 election being stolen, and for subsequently refusing to confirm that the results of the 2020 election were valid. One of those justices – Pat DeWine – is also under scrutiny for having liked a tweet promoting a conspiracy theory about the violent attack on the husband of the House speaker, Nancy Pelosi, asking “what are they hiding?” He has since said he clicked “like” inadvertently.
Meanwhile, Zayas, Jamison and Brunner have publicly stated that they believe the Ohio constitution protects the right to abortion.
Weisenberg cautions that neither political affiliation, nor what a justice indicates of their views before their election, are watertight indicators for how they will rule once they are on the supreme court. “People are surprised sometimes when they read the opinion and it’s not in keeping with where they thought the justice would lean, or what they had said on a prior occasion,” he said.
Indeed, the US supreme court justices Brett Kavanaugh and Samuel Alito indicated they believed the constitutional right to abortion was settled precedent before being confirmed to the court.