The Abortion Wars’ New Front: A Quiet Battle for Judicial Supremacy

The abortion debate has been dominated by national headlines, but a quieter threat has been building in state legislatures. As the spotlight shines on high-profile elections, these lawmakers are quietly concocting strategies to undermine one of the last bulwarks protecting reproductive rights: independent judiciaries.

A referendum in Kansas today appears innocuous at first glance – changing how state supreme court justices are selected. However, this is not just about good governance or accountability; it’s a calculated move to politicize the judiciary and pave the way for undoing abortion protections in states like Kansas, which has long stood as a barrier against anti-choice laws since Dobbs.

Proponents of restricting abortion rights have been circling the wagons for years, waiting for an opening to strike at independent courts that have thwarted their efforts. In 2022, Kris Kobach, former state attorney general, outlined this strategy: electing anti-abortion judges through partisan elections, effectively making them subject to the whims of voters and special interests.

The stakes are high because non-elected state courts have been the last line of defense against Republican supermajorities and governors in red states. Kansas has been an oasis for abortion access in a sea of restrictive laws; its independent judiciary has protected women’s reproductive rights, inspiring advocates to use ballot measures to enshrine similar protections in other states.

State legislatures are increasingly targeting these courts, attempting to undermine their independence and pack them with judges who share their ideological agenda. Michael Milov-Cordoba, of the Brennan Center for Justice, warns that “state legislators across the country are trying to undermine those courts…Changing how judges are selected is top of the list.”

If this referendum succeeds in Kansas, the fallout will be far-reaching. Independent checks on power will crumble, allowing Republican-controlled state legislatures to dictate policy with impunity. The result? A judiciary beholden to special interests and voters’ whims, eroding the constitutional protections that have safeguarded abortion rights.

As we focus on high-profile elections like Michigan’s Senate contest, a more insidious threat lurks in the shadows: the politicization of the judiciary. Today’s vote in Kansas is not just about abortion; it’s about the very fabric of our democracy. If we fail to recognize this quiet battle for judicial supremacy, we risk ceding control to those who would exploit the system to further their ideological agenda.

Deirdre Schifeling, chief political and advocacy officer at the ACLU, warns that if these courts become partisan, they will be subject to being bought and sold by billionaire donors. “They become a race to the bottom,” she says. The outcome of this referendum will determine whether Kansas remains an island for abortion access or becomes another battleground in the ongoing war over reproductive rights.

The battle for judicial supremacy has been quietly raging, largely below the radar. It’s time to shine a spotlight on this critical front and recognize that the fight for abortion rights is far from over. Today’s vote in Kansas is not just about one state; it’s about preserving the checks and balances that have protected our democracy for so long.