How Texas’ abortion ban could hand Supreme Court seats to Democrats

  

Since the U.S. Supreme Court overturned Roe v. Wade, voters have chosen to preserve access to abortion in every state where the issue has been on the ballot.

Measures to protect access to abortion are set to go before voters in nine states this November. But in Texas, which has one of the most restrictive abortion bans in the nation, there’s no such option.

Instead, an effort is underway to frame races for seats on the Texas Supreme Court as a referendum on abortion and unseat three of the court’s Republican justices—Jimmy Blacklock, Jane Bland, and John Devine—who are up for re-election.

Blacklock, Bland, Devine and other justices on the all-Republican court rejected a challenge from a group of women who were denied abortions despite developing dangerous pregnancy complications in Zurawski v. Texas, which had sought to clarify medical exceptions to the state’s abortion ban. The court also rejected Kate Cox’s request for an exception to the state’s abortion ban after her fetus was diagnosed with a fatal condition.

Cox and some of the plaintiffs have since become champions for abortion rights, and are working with a political action committee called Find Out to rally voters to replace Blacklock, Devine and Bland with Democratic challengers DaSean Jones, Christine Weems and Bonnie Lee Goldstein on the state’s highest court.

I “was forced to leave our state to save one of our twins and my life,” Lauren Miller, one of the plaintiffs in Zurawski v. Texas, says in one ad from Find Out.

“It’s critical in my mind to humanize this issue, to make voters understand that we are real people,” Miller, 37, told Newsweek of why she got involved in the campaign. “This is really a life or death race for Texans.”

Cox and three other plaintiffs in the Zurawski case—Taylor Edwards, Kaitlyn Kash and Ashley Brandt—told Newsweek that they have been sharing their stories with the hope that it would highlight the stakes of the Texas Supreme Court races to voters.

“I think the best avenue forward in getting real change in Texas is using our vote as our voice and really saying we’re not ok ay with the way that the Supreme Court ruled in the Cox case or in the Zarowski case,” Edwards told Newsweek.

Gina Ortiz Jones, the PAC’s founder and the former undersecretary to the U.S. Air Force, began looking into the state’s top court after reading the ruling in the Cox case.

“I thought it was ridiculous,” Jones told Newsweek, adding that the court’s ruling provided a blueprint for other courts about how to negate medical exceptions.

“I grew up in a part of San Antonio where ‘f*** around and find out’ is not an uncommon phrase, so that’s where our [name] comes from.”

While Republicans have won every race for the Texas Supreme Court since 1989, Jones is optimistic that a Democrat could be elected if the race is voters understand the stakes.

“We’re the epicenter for the number one issue in the country,” Jones said. “How could we not try to do this?”

She pointed to a poll conducted by Global Strategy Group for the PAC that found a majority of Texans support abortion rights, with 90 percent agreeing that abortion should be legal to save the life of the mother, including 84 percent who said they are voting for former president Donald Trump.

The PAC’s polling found that nearly half of likely voters could not recall seeing or hearing anything about the Texas Supreme Court in the last year. It also showed that the Texas Supreme Court races move to a statistical tie when voters are shown stories of the impact that the court’s rulings have had on women.

It’s “remarkable” that the races are competitive when voters are informed since they historically have not been, Jones said.

To combat the information gap, the PAC is working to raise awareness about the Texas Supreme Court’s abortion rulings and the anti-abortion positions of the incumbent justices up for re-election.

In a statement provided to Newsweek, Blacklock said the court “works hard in every case to understand Texas law as it is—not as we might like it to be—and to apply Texas law fairly and equally to all parties before the Court. We also work hard to preserve the authority of the People of Texas to decide through democratic processes what their laws will be. The political power to make the law and to change the law belongs to the People of Texas, not to the judges of Texas.” The Bland and Devine campaigns have been contacted for comment via email or through a contact form on their website.

“Before I ever got into politics, my convictions were forged in the crucible of the pro-life movement,” Devine said in a campaign speech in 2012, and that he had been arrested 37 times outside abortion clinics.

Bland authored the opinion in the Zurawski v. Texas case that said the Texas abortion law’s exceptions, as written, are broad enough. And Blacklock was appointed to the court by Texas Governor Greg Abbott, who said in 2018 that he didn’t “have to guess or wonder how Justice Blacklock is going to decide cases because of his proven record of fighting for pro-life causes.”

Texans have “the same information gap that exists throughout the country, frankly, but what Texas has is unfortunately lots of stories already of women that are suffering because we had the six-week abortion ban, no exceptions for rape or incest, for almost a year before Roe fell,” Jones added.

Texas’ six-week abortion ban took effect in September 2021. The state, along with more than a dozen Republican-controlled states, then banned abortion at every stage of pregnancy after the Supreme Court overturned Roe v. Wade, stripping away constitutional protections for abortion, in the summer of 2022.

ProPublica reported on Wednesday that Josseli Barnica, a 28-year-old mother, died days after the six-week abortion ban took effect when doctors delayed treating her miscarriage because of the law.

Jones added that abortion “is really one of those issues where it crosses party lines, because people understand… it should not be a partisan thing, and that’s why we’ve got, I think, really great momentum.”

But Todd Curry, a political science professor at the University of Texas at El Paso, said he harbors “extreme doubts” that a Democrat could be elected to the court this November.

“Considering the amount of time it has been since a Democrat has won statewide office in Texas, I have extreme doubts that the first one will come from a State Supreme Court election,” he told Newsweek.

“It would be significant merely as a signal that Democrats can win in the state, but as for actual policy chance, it would require five Democrats at least to be elected to the bench before we would expect any significant policy movement from the Court, and of course, there is no chance of that occurring.”

Still, Jones and the women are hopeful their efforts will succeed in putting at least one dissenting voice on the court.

“If it can happen in Kansas, Ohio… we’re quite optimistic,” Jones said, pointing to two of the reliably Republican states where voters have sided in favor of abortion rights after Roe‘s fall.

She notes that a sole Democrat on the court could serve as a powerful dissenting voice, like Justice Ketanji Brown Jackson has done in decisions by the U.S. Supreme Court’s conservative supermajority.

The Texas Supreme Court’s opinions “are kind of copied and pasted for others,” Jones said. “And so if you now have a dissent, it makes it harder for somebody to do that, because then they have to consider the points raised that are contrary to what that opinion says.”

Cox said she is hopeful that Texans who have seen the impact of the state’s abortion ban will make their voices clear at the ballot box.

Texans “don’t want to see the woman they love turned away from hospitals and have to flee their home to get the care that they need,” she told Newsweek. “What we’re seeing is a lot of anger and frustration and betrayal… I think we’re going to see Texans prioritize reproductive freedom.”

Unseating even one of the Republican incumbents will send a “message that we’re not going to stand for this,” Brandt added. “You ruled against us. You’re hurting us, and we’re going to stand up for ourselves.”