The XX Factor

Anti-Abortion Activists Tried to Oust Pro-Choice State Judges. They Failed Miserably.

A safe place for pro-choice judges—in 2016, at least.


Nov. 8 was a terrific day for the national anti-abortion movement, whose allies in Congress and the White House can now move to aggressively restrict abortion access and stack the federal judiciary with anti-abortion judges. But in two states, the movement suffered a surprising setback: Despite months of campaigning, abortion foes were unable to unseat state Supreme Court justices in Kansas and Alaska who had ruled in favor of abortion rights.

The U.S. Supreme Court, of course, has found that the 14th Amendment protects a woman’s right to terminate her pregnancy, guaranteeing abortion access in every state. But several state Supreme Courts have also found that their state’s constitution prohibits unduly burdensome abortion restrictions. In July, the Alaska Supreme Court struck down a state law requiring minors to notify their parents before obtaining an abortion, ruling that it infringed upon the state constitution’s equal protection guarantee. And in the near future, the Kansas Supreme Court will decide whether the Kansas constitution includes the right to terminate a pregnancy. The commendably independent court seems likely to agree that the constitution protects women’s bodily autonomy.

Left-leaning judges on both courts were up for retention elections this year, and anti-abortion groups snapped into action, urging voters in both states to unseat the judges simply because they support abortion rights. This gambit has worked before; state Supreme Court justices have been ousted for restricting capital punishment and supporting marriage equality. But this time, it failed miserably. Not a single judge targeted by anti-abortion groups lost his or her seat. Voters resoundingly rejected calls to remove judges from the bench on account of their judicial philosophy.

This refusal is an encouraging sign, because the federal judiciary seems likely to crack down on abortion rights in the near future. As federal protections for abortion access fade, state protections will become increasingly vital. And state judges who rule in favor of personal liberty and bodily privacy now have one fewer reason to worry that their judicial principles will cost them their job.