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Races for state Supreme Courts will also influence the future of abortion laws

The Washington Post logo The Washington Post 9/27/2022 Rachel Roubein, McKenzie Beard

Good morning. NASA crashed a small spacecraft into an asteroid at 14,000 mph — and everyone is thrilled. Send space news (and health tips) to rachel.roubein@washpost.com.

Today’s edition: A five-year reauthorization of FDA’s user fees is officially in a bill to fund the government through mid-December. The White House laid out its plan to end hunger by 2030. But first …

Supreme Court races could affect the future of abortion laws in Michigan, North Carolina, Ohio and Illinois

The decision is expected to be appealed to a higher court. (Jeff Kowalsky/AFP/Getty Images) © Jeff Kowalsky/AFP/Getty Images The decision is expected to be appealed to a higher court. (Jeff Kowalsky/AFP/Getty Images)

Governors and attorneys general races are getting increased attention as the battle over abortion access returns to the states. 

But there’s another type of often-overshadowed contest that could have major implications for abortion rights: state Supreme Court justices. States where party control hangs in the balance during November’s elections include Michigan, North Carolina, Ohio and Illinois.

Since the Supreme Court overturned Roe v. Wade, abortion rights supporters have turned to state courts to attempt to halt newly implemented abortion bans. The legal arguments vary, but many are hinged on the assertion that provisions in the state’s constitution should protect the right to access an abortion. Some have already wound up in front of the state Supreme Court; others could at a later date. 

State Supreme Court races typically fly under the radar, but they can affect everything from redistricting to school funding to gun control. 

  • “I think that these are going to be some of the most important races that are happening in the entire country around abortion access this November,” said Jake Faleschini, legal director for state courts at the Alliance for Justice, a progressive judicial advocacy group.

The details

In six weeks, voters will head to the polls and vote on state Supreme Court justices in roughly 30 states.

It’s a mix of mostly nonpartisan candidates, some partisan races and what’s known as a “retention” vote, an up-or-down vote to decide whether an incumbent justice will keep their seat.

In recent years, such elections have seen an influx of cash. During the 2019-2020 election cycle, a record $97 million was spent on these races across the country, according to the Brennan Center for Justice at New York University’s law school. 

But the focus on this year’s spending doesn’t appear to be concentrated on abortion. The Republican State Leadership Committee (RSLC) is investing a record of over $5 million this year on state Supreme Court races. It previously announced redistricting as the focus of the funding blitz in a February strategy memo, and RSLC maintained yesterday that its strategy hasn’t changed.  

As for the Democratic Legislative Campaign Committee (DLCC), the group is investing in state Supreme Courts for the first time. 

“Our main focus is still on state legislatures, but state supreme courts wield tremendous power over redistricting maps, election implementation, and abortion rights,” Heather Williams, DLCC’s executive director, said in a statement. The group didn’t detail how much it plans to spend.  

State watch

Here are four states we’re watching:

Michigan: Democrats currently hold a 4-3 majority on the court, but two seats are up for a vote. The candidates tend to be nominated by a political party, though that affiliation doesn’t appear on the general election ballot.

Michigan Gov. Gretchen Whitmer (D) asked the state’s highest court to strike down a 1931 pre-Roe ban on abortion. The state Supreme Court hasn’t yet ruled on the constitutionality of the ban.

North Carolina: Similar to Michigan, the Democrats have a 4-3 majority on the state’s Supreme Court. Party labels are included on the ballot, and two seats will be voted on, giving the GOP a shot at gaining control of the court.

In August, a federal judge reinstated a ban on abortion after 20 weeks. However, the case was filed in federal court, so it wouldn’t be appealed to the state Supreme Court.

Ohio: For the first time, party affiliation will be listed next to the name of the candidates on the general ballot. Republicans have a 4-3 majority on the court, and three seats are up for election.

Earlier this month, a Hamilton County judge temporarily blocked the state’s ban on abortion after fetal cardiac activity is detected, which is roughly six weeks. That case has the potential to eventually wind its way to the state Supreme Court.

Illinois: The state redrew its district lines for the court for the first time in over 50 years, and that’s led to two competitive races this year, according to the University of Virginia Center for Politics. Democrats currently have a 4-3 majority on the court. Abortions are legal in this blue state.  

Daybook

On tap today: President Biden is slated to deliver remarks at 1:15 p.m. on lowering health-care costs, and protecting and strengthening Medicare and Social Security.

Agency alert

Congress secures a deal to avert pink slips for FDA staff

Sen. Richard Burr (R-N.C.) listens to witnesses during a Senate hearing on monkeypox on Wednesday. © Sarah Silbiger for The Washington Post Sen. Richard Burr (R-N.C.) listens to witnesses during a Senate hearing on monkeypox on Wednesday.

It’s official: Congress plans to renew for five years the Food and Drug Administration’s user fees, which help fund a significant portion of the agency’s budget. The extension was included in the text of a stopgap spending bill released just hours ago. 

A Senate GOP aide familiar with the negotiations, who spoke on the condition of anonymity because they were not authorized to comment publicly, had told The Health 202 that the measure will be a clean user fee agreement without policy riders. This comes after Senate Minority Leader Mitch McConnell (R-Ky.) had demanded that the deal exclude “extraneous items.” The legislation also includes short-term reauthorizations for some programs that accompany the user fees, setting up a future battle.

This includes reauthorizations through mid-December of programs such as a grant for improving pediatric medical devices, reporting requirements on generic drug applications and certain device inspections. This means that lawmakers will revisit these programs in a year-end spending deal.

Rep. Frank Pallone Jr. (D-N.J.), chair of the House Energy and Commerce Committee:

White House prescriptions

New this a.m.: The White House released its strategy for ending hunger in the United States by 2030 ahead of the first national conference Wednesday on dietary health and food security in over 50 years, The Post’s Andrew Jeong reports.

In a 44-page summary, the Biden administration promised to make healthy food more affordable and accessible, as well as to invest in expanding physical activity programs and enhancing research. 

Specifically, the White House plans to expand free school meals to 9 million more children within the next decade, improve transportation for an estimated 40 million Americans who don’t live near a grocery store, reduce sodium and sugar in food products and more.

Reproductive wars

University of Idaho may stop providing birth control under new abortion law

The new guidance comes a month after a near-total abortion ban took effect in the state. (Amanda Voisard/The Washington Post) © Amanda Voisard/Amanda Voisard/for The Washington Post The new guidance comes a month after a near-total abortion ban took effect in the state. (Amanda Voisard/The Washington Post)

In a rare move, the University of Idaho’s general counsel issued new guidance Friday about the state’s near-total abortion ban, alerting faculty and staff that the school should no longer offer birth control for students, our colleagues Caroline Kitchener and Susan Svrluga report. 

The university’s legal team said it was advising the school to adopt the “conservative approach” to contraceptives because the language of the state’s new law is “unclear and untested," according to the message obtained by The Post. 

The state's trigger ban, which went into effect on Aug. 25, outlaws abortions after conception, except for limited exceptions for instances where the patient's life is at risk or in cases of rape or incest so long as the crime was reported to law enforcement. 

University employees were also advised against speaking in support of abortion at work. If an employee appears to promote abortion, counsel in favor of the procedure or refer a student for abortion services, they could face a felony conviction and be permanently barred from all future state employment. 

More from Caroline:

Global health

After covid-19, WHO director general plans for the next pandemic

Tedros Adhanom Ghebreyesus at the campus of the World Health Organization in Geneva, on Aug. 18, 2022. © Marzena Skubatz for The Washington Post Tedros Adhanom Ghebreyesus at the campus of the World Health Organization in Geneva, on Aug. 18, 2022.

As leader of the World Health Organization throughout the pandemic, Tedros Adhanom Ghebreyesus’s life for the last 2½ years has been consumed by covid-19.

And while much of the world appears to be moving on from the virus, the immunologist from Ethiopia disagrees with those who say the pandemic is over. “We’re still in the middle of a big war,” he told our colleague Adam Taylor in a wide-ranging discussion, which WHO officials called his most substantial one-on-one interview since the pandemic began. 

Now, in his second term as head of the top U.N. body for global health, Tedros has set his sights on a bold and controversial new project that he hopes will produce a new deal among global states on how to prepare for and respond to a pandemic. He’s in Washington this week to meet with senior Biden administration officials to push for more global coronavirus aid and shore up the country’s support for the initiative. 

The international treaty on pandemic preparedness, he said, would be a “game changer” for ensuring scientific and political cooperation across borders both before and during an outbreak. A majority of member states support the idea and have pledged to finalize draft text at the World Health Assembly, the legislature that governs the WHO, by 2024. 

But some experts have concerns about the deal. They contend there is still little consensus about what it should include and it may not be a binding document.

Hear more from Tedros: 

In other health news

  • More than 50 groups — including Public Citizens, Oxfam America and Families USA — are urging congressional leaders to fulfill the White House’s request for $26.9 billion to combat the coronavirus and monkeypox, per a letter shared first with The Health 202.
  • The Women Speak Out PAC, partner of Susan B. Anthony Pro-Life America, launched a $1 million TV ad campaign in Arizona yesterday with the aim of contrasting GOP candidate Blake Masters’s senatorial campaign against incumbent Sen. Mark Kelly (D), who supports abortion rights.
  • Health and Human Services Secretary Xavier Becerra declared a public health emergency for Florida yesterday in preparation for Hurricane Ian. Such a move unlocks greater flexibility for the Centers for Medicare and Medicaid Services’s beneficiaries and providers.
  • Pfizer and its German partner BioNTech announced that it submitted an application to the FDA seeking emergency use authorization of its updated coronavirus booster shot for children ages 5 to 11.

Health reads

Texas Attorney General Ken Paxton fled his home to avoid being served with subpoena, court record says (Eleanor Klibanoff l Texas Tribune)

New book recounts the FDA’s ‘unholy birth’ (By Erin Blakemore | The Washington Post)

Five things about covid we still don’t understand at our peril (By Mark Johnson | The Washington Post)

‘Eye of the storm’: Planned Parenthood in Kansas can’t keep up with abortion demand (By Lisa Gutierrez | The Kansas City Star)

Sugar rush

Thanks for reading! See y'all tomorrow.

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