More abortion ballot measures are set to pass. Then state courts will have their say.

PHOENIX — Arizonans appear poised to enshrine abortion protections in their state constitution. But judges, not voters, may have the last word.

The battleground state is one of several where right-leaning groups are backing conservative judges as they prepare to challenge in state supreme courts newly passed ballot measures protecting the procedure.

These historically overlooked judicial races — in places like Arizona, Michigan, Montana, Ohio and Texas — are attracting millions of dollars in donations this cycle from national and state groups on both sides of the abortion-rights fight, including Planned Parenthood, the American Civil Liberties Union, SBA Pro-Life America and National Right to Life.

In Arizona, progressive groups are holding events and knocking on doors to make GOP-appointed state Supreme Court Justices Clint Bolick and Kathryn King the first in state history to lose a retention vote by reminding voters the pair ruled this year to uphold an 1864 law criminalizing nearly all abortions.

“That law was created before women had the right to vote in Arizona, or anywhere. They literally made a law without us, about us,” said Jodi Liggett, the founder of Arizona Center for Women’s Advancement who has worked for both Republican and Democratic state officials. “People need to understand that their vote on [judicial retention] is absolutely just as important as their vote on [the abortion-rights ballot measure]. We can’t have a runaway judiciary.”

Both sides of the abortion debate acknowledge that for all the top-of-the-ticket rhetoric about what former President Donald Trump or Vice President Kamala Harris would do if elected, state high court justices are likely to have a far more direct role in shaping access to the procedure.

State supreme courts gained unprecedented power over reproductive medicine following the Dobbs decision, which eliminated federal protections for abortion and kicked the issue to states. Last year, races in Wisconsin and Pennsylvania, which once flew under the radar, took on national import as progressives made abortion their leading argument .

Even if courts don’t strike down abortion-rights ballot measures as conservatives hope, state justices can decide how the referendums are interpreted and implemented, and are expected to rule on whether laws and regulations like mandatory waiting periods will stand.

“If the ballot measures pass, there’s a lot of interest in challenging them as vague and misleading, and that can be an area for an injunction or other court action,” said Kristi Hamrick, the chief policy strategist with Students for Life of America. “And that’s how we went from Roe to Dobbs — we ended up in court again and again and again. So on election night they might say, ‘Ha ha, we won, you lost.’ And my response will be: ‘We’ll see.’”

In Texas, progressives formed the “Find Out PAC” to run ads against three of the conservative justices who ruled to deny Kate Cox an abortion for her non-viable, health-threatening pregnancy. In Michigan, the ACLU is spending $2 million to promote two justices likely to uphold abortion protections voters adopted a few months after the fall of Roe . And in Ohio, both abortion-rights and anti-abortion groups are going door-to-door talking about the importance of the state Supreme Court elections as the court prepares to rule on how the amendment passed by voters in 2023 should be interpreted.

“People think, ‘Well, I voted on it. It’s a settled issue,’” said Mike Gonidakis, president of Ohio Right to Life. “The court, no matter if it’s liberal or conservative, can’t overturn what the voters have put into the state constitution. That’s not going away. But they can interpret what it means, and what the legislature can do in the future — or can’t — and that’s important.”

The surge of attention on state supreme court races is evident across Arizona’s sunbaked street corners and freeway off ramps, where black-and-white signs, squeezed in between colorful placards for House, Senate and presidential candidates, remind voters that “Bolick bans abortion.” Competing teal signs sponsored by the “Judicial Independence Defense PAC” argued that keeping Bolick and King on the bench would “preserve the independent judiciary,” while voting them out over their abortion rulings would politicize the high court.

It’s a message the justices echoed in remarks to the Sun City West Republicans Club on Saturday at a Pentecostal church nestled in a retirement community in the Phoenix suburbs. Standing between a fully decorated Christmas tree and a cardboard cutout of Trump giving a double thumbs up, Bolick said he and King know how to “check our politics at the door of the court” and argued their ruling on abortion was only “a convenient excuse to try to get people on the left riled up and replace us with judges who will rubber stamp their ideological agenda.”

But even as Bolick stressed his fairness and independence, he assured the assembled Republicans that he would continue “fighting for conservative principles.” He touted his work for the conservative Goldwater Institute and the Reagan Justice Department, and mentioned that Supreme Court Justice Clarence Thomas is a mentor and his child’s godfather. When he noted that Democratic Gov. Katie Hobbs would choose his replacement, the crowd booed. Linda Barnes, one of the club’s leaders, jumped in to add that any judges picked by Hobbs would “advance the left’s woke agenda” and “destroy the rule of law.”

The progressives trying to take down the two justices argue that it’s Republicans who politicized the court, pointing to former Republican Gov. Doug Ducey’s court packing in 2016, which expanded the bench from five to seven justices, and subsequent appointment of staunch conservatives including Bolick and King.

They also note that Republican lawmakers put a separate measure on this year’s ballot that could both abolish future judicial retention elections and override this year’s results, meaning that voters could give Bolick and King the boot only to see them remain on the high court if that initiative passes.

“If it is politicized, that’s something that started with the right,” said Alex Alvarez, the executive director of Progress Arizona, the group leading the effort to vote out Bolick and King. “We have an independent system already, and the voters are exercising their ability to be independent auditors of the court.”

Despite the heightened attention, activists on both sides remain concerned that the steep dropoff of years past — voters checking boxes at the top of the ticket and leaving judicial races blank — will continue.

“I’m worried … that [voters] won’t spend the time and energy to really focus and learn and understand how these races impact their rights,” said Jake Faleschini, legal director for state courts at the left-leaning Alliance for Justice Action Campaign. “Who these folks are and what their values are and how expansively they interpret those rights versus how narrowly they interpret those rights will now forever be on the ballot because of the Supreme Court of the United States overturning Roe v. Wade .”

In Ohio, the future of abortion access hinges on an open state supreme court seat that could give left-leaning justices a majority for the first time in nearly four decades — so long as Democrats also defend two other seats this November.

The state voted in 2023 to protect reproductive health services, including abortion, in the state constitution, but anti-abortion advocates hope a conservative court will signal what, if any, restrictions would still be considered constitutional ahead of the 2025 legislative session.

Ohio Right to Life is deploying its 45 chapters across the state, canvassing door-to-door, running digital and radio ads and attending Friday night football games to mobilize voters.

Ohio’s abortion-rights groups are working equally hard to flip the court in their favor. Abortion Forward, along with other local and national abortion-rights groups, is urging the 57 percent of voters who last year supported the abortion-rights amendment to now support three Democratic justices they see as more supportive of abortion rights, and are targeting suburban women in particular.

“Just passing [the amendment] isn’t enough, just like Roe wasn’t enough,” said Kellie Copeland, executive director of Abortion Forward. “You need to understand: Our opponents haven’t given up. They always have a long-term plan and they’re always looking for ways to undermine the work that groups that are working to protect abortion access are doing.”

In Montana, the abortion-rights amendment will share the ballot with state supreme court candidates, leading groups like the national ACLU and the ACLU of Montana to pour over $1 million into a voter education campaign on the latter. There are two vacant seats on the court — a rare occurrence — that will likely be key to determining the future of abortion access in the state.

“As we saw with Dobbs , who is sitting on the bench and interpreting a constitution is almost as important as what is contained in the constitution itself,” said Alex Rate, legal director at the ACLU of Montana.

And in Texas, where state laws bar voters from proposing constitutional amendments, including those on abortion rights, progressive activists are pushing the message that the state supreme court races serve a similar purpose.

“This is our ballot initiative,” said Gina Ortiz Jones, the leader of the Find Out PAC. “We just have to explain to folks: If you’re pissed off about what’s happened to Kate Cox, if you’re pissed off about what has happened to Amanda Zurawski and all these other women, it’s the Texas Supreme Court that you can hold accountable this November. We’re not helpless. We’re not hopeless. We have an opportunity.”