How abortion is reshaping some races to become powerful state judges

"I can tell you that they are getting asked those questions," one Democrat said.

March 21, 2024, 8:00 AM

Montana is not known as a swing state, but in the wake of the end of Roe v. Wade, experts and political observers say that contests there could reveal more about the playbook for liberal and conservative candidates for some of the country's most impactful yet overlooked positions: state court judgeships.

Two seats are open this year on the state's middle-of-the-road Supreme Court, and state Republicans are targeting the state's 25-year-old ruling declaring the state constitution's right to privacy covers abortions.

Now, in the second full election year after Roe's nationwide guarantee to abortion access was struck down -- and as abortion rights have won in a number of races around the country, in red and blue states alike -- strategists say candidates for the Montana court seats and similar races elsewhere are going to have to decide whether to weigh in on an issue that could be at the heart of cases they ultimately hear from the bench.

"I can tell you that they are getting asked those questions," one Montana Democratic strategist, who said they know two liberal candidates for the state's Supreme Court, told ABC News when asked how explicitly the contenders will discuss abortion on the campaign trail.

"It'll be curious to hear," said this strategist, who asked not to be quoted by name to be more candid.

The state's Supreme Court is ostensibly nonpartisan, but much like similar races elsewhere, candidates can forecast where on the ideological spectrum they fall.

Jerry Lynch, a former federal magistrate judge for the U.S. District Court for the District of Montana, is seen as the more liberal-leaning candidate running for the chief justice opening, while Cory Swanson, a prosecutor, is casting himself as a "judicial conservative."

Katherine Bidegaray, a state judge, is running for the associate justice opening against Dan Wilson, who is waging a more conservative campaign.

The races are taking place at a time when legislative efforts to expand or restrict abortion rights, spurred by the 2022 decision on Roe, are continually facing legal challenges that are expected to snake their way to a slate of state Supreme Courts.

Montana Attorney General Austin Knudsen, a Republican who has been lauded by his party for "efforts to protect the lives of the unborn," is also pushing the court to strike down a 1999 ruling shielding abortion under the state's privacy protections while trying to block a ballot measure from being voted on this November that, if passed, would further solidify abortion access.

PHOTO: Montana Attorney General Austin Knudsen arrives to testify during the House Homeland Security Committee hearing on Alejandro Mayorkas, Washington, D.C., Jan. 10, 2024.
Montana Attorney General Austin Knudsen arrives to testify during the House Homeland Security Committee hearing on Alejandro Mayorkas, Washington, D.C., Jan. 10, 2024.
Bill Clark/CQ-Roll Call, Inc via Getty Imag

Already, the state's high court has had to grapple with abortion, last year rejecting a challenge brought by the state government arguing that the GOP-dominated state Legislature has the power to regulate a nurse’s scope of practice. That ruling also reaffirmed the 1999 Armstrong v. State ruling.

"The Montana Constitution guarantees a woman a fundamental right to privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk," Supreme Court Justice Laurie McKinnon wrote then.

Despite that, the focus on abortion remains, and candidates are already indicating how or whether they plan on addressing it.

Wilson did not respond to a request for comment, but the three other candidates who spoke to ABC News all insisted they would not say how they'd rule in a hypothetical case. But that's where the agreements ended.

Both Lynch and Bidegaray invoked precedent and women's rights, which outside operatives see as a kind of allusion to abortion protections that is expected from liberal-leaning candidates in Montana and elsewhere.

"I can't comment upon how that may play out because that request may still be pending before the court when I'm chief justice. But I will say, and I emphasize, precedent is essential to stability in the legal system," Lynch said, referencing Knudsen's request.

"I would say that I'm in tune with, if you will, and understand the importance of reproductive autonomy across the board. But what I'm trying to emphasize is that in Montana, and probably elsewhere, but in Montana, where I'm focused -- it goes to the individual privacy and individual dignity that our constitution enshrines," he added. "In Montana, that's not up to the government. It's up to the individuals."

Bidegaray said in a statement that "I am running for the Montana Supreme Court to protect our democratic principles, which include the separation of powers and the unique rights provided by the 1972 Montana Constitution, including women's rights."

Swanson, meanwhile, was reluctant to discuss the issue, citing the prospect of having to decide on abortion access should he reach the Supreme Court.

"For that reason, I don't believe it would be appropriate to discuss potential outcomes of future cases," he wrote in an email. "My view on all these contentious issues is to try very hard to separate the politics from our interpretation of the law. That's not easy, but it is essential for judges to use that methodology. That's probably as much as I'm willing to comment."

Montana is far from the only state with key judicial races this year -- 33 states in total have at least one Supreme Court seat up for grabs, not to mention races for lower state courts. And the potency of abortion access as an issue has already impacted state courts and their elections, as was seen in Wisconsin last year.

PHOTO: People attend the annual March for Life rally on the National Mall in Washington, D.C., Jan. 19, 2024.
People attend the annual March for Life rally on the National Mall in Washington, D.C., Jan. 19, 2024.
Kent Nishimura/Getty Images

Political operatives who spoke with ABC News predicted the strategies in Montana to be replicated elsewhere, further marking the early pages of a playbook that was informally cracked open with the Wisconsin Supreme Court race, in which the liberal-leaning judge won.

The responses from Lynch, Bidegaray and Swanson were essentially a redux of the messaging of now-Justice Janet Protasiewicz as she went on to defeat Daniel Kelly, a more conservative former state Supreme Court justice, in Wisconsin.

Protasiewicz ultimately won that race by about 11 points and was open about her support for abortion rights while declining to explicitly say if she'd overturn the state’s 174-year-old abortion ban. Kelly tried to veer away from the topic during the campaign.

Kelly's strategy was duplicated in Alabama after the state's Supreme Court there sparked a national debate over in vitro fertilization with a February decision that said frozen embryos were children under state law.

The associate justice who was running for the open chief justice spot concurred with the majority decision and later won her primary but hasn't spoken extensively about IVF on the trail. The general election for the seat is expected to be noncompetitive, given the state's partisan lean.

Still, Democrats, buoyed by the Wisconsin race, are encouraging many candidates not to breach a judicial line but also to seize on a topic that has produced victories up and down the ballot since 2022 -- in Montana and beyond.

"I want to be clear, there's nothing wrong with judicial candidates making clear what their deeply held values and legal convictions are. That's what judge candidates should do. What judge candidates often can't do is say, 'Here's exactly how I would rule on a case you just saw on CNN.' That's not possible," said Joshua Karp, a Democratic strategist who worked on Protasiewicz's campaign.

"What judicial candidates need to do is make clear that they believe that there is a right to privacy in state constitutional law. They need to make clear that the right to reproductive freedom is a fundamental human right that state lawmakers should not infringe upon," Karp said.

That approach has fueled howls from conservatives who argue Protasiewicz and other candidates are crossing a kind of ethical line and inappropriately politicizing judicial races.

But those lamentations are mixed with a recognition that, for now, not discussing abortion could cede a powerful talking point.

"I don't think it's good for the health of the judiciary," said one former Kelly campaign aide, who asked not to be quoted by name. "But I think there's a practicality if you're looking at one person talking explicitly about issues and the other person talking about kind of nebulous, philosophical issues -- I think there's a good chunk of the electorate that will be moved by the more direct issue-based appeal. And I think that's just the direction that's going to be going."

Related Topics