Some of the most high-profile legal challenges to cases involving reproductive health and sexual freedom are being fought out in federal courts across the country. Meanwhile, the battle over abortion rights and same-sex marriage is increasingly moving to the states and the role of state courts in defining the contours of those rights is becoming more important. And more politicized.
In 38 states, voters elect their high court judges. Thanks to the Citizens United decision, which opened the doors for unlimited corporate spending in elections, and to a host of federal court decision since, state judicial elections have become a big-money game. A new report by the Center for American Progress traces the impact of unlimited campaign cash on state court judicial races and the news is not good.
Candidates in state supreme court races raised an estimated $210 million between 2000 to 2009, or two-and-a-half times more than in the previous decade. But that’s nothing compared to 2012 where judicial elections saw a record $29.7 million spent on television ads in state supreme court races with more than half that money coming in the form of independent expenditures. Several of these races were high-profile campaigns targeting candidates whose decisions supported laws unpopular among the conservative right. This was the case in Iowa and Florida where conservatives in the state, backed by big dollars from outside groups, launched a retaliation campaign after the courts in those states issued rulings affirming gay marriage rights and ruling against attempts to block implementation of health care reform via ballot initiatives, respectfully.
As conservative attacks on judicial candidates increase, pro choice organizations have had to step up their involvement as well. In Illinois, for example, Justice Mary Jane Theis faced a primary challenge after siding on behalf of unions in a series of decisions and as anti-choice advocates have ramped up attacks on reproductive rights in the state.
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Despite the Illinois race, the majority of outside spending has come from conservative groups like the Koch brothers’ Americans for Prosperity which, with the help of anti-choice legal advocate James Bopp Jr., are transforming the electoral landscape by putting our courts up for sale.
The stakes in this sale could not be higher for reproductive rights and social justice. As anti-choice advocates seek to expand fetal rights and criminalize pregnancies, state courts will either be the place where those campaigns end or, as we’ve seen in Alabama and Texas, the place where our rights do.