Roe leak puts new weight on state attorney general contests

The leaked draft Supreme Court decision suggesting Roe v. Wade is set to be overturned has raised the stakes for a number of attorney general races in states with laws that could further restrict abortion access.

Thirteen states currently have trigger laws on the books that would take effect automatically in the case that the 1973 Supreme Court decision is overturned. Democratic attorney general incumbents and candidates are making the development a central part of their campaign message and hoping to use it to put their Republican opponents on defense.

With the high court appearing to be on track to overturning the landmark decision and federal Democrats unable to preserve it, the party is increasingly viewing state attorneys general as their last line of defense to protecting abortion access.

“There is nothing greater than the bread-and-butter issue that is before us with a woman’s right to choose whether to have a child,” said Delaware Attorney General Kathy Jennings, who also serves as the co-chair of the Democratic Attorneys General Association.

“It’s why it’s so vitally important to elect Democrat attorneys general, especially in those states where it is highly likely that an old law, a pre-Roe abortion ban, will try to be resurrected, as well as in those states that have passed trigger laws,” she continued.

Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Oklahoma, Tennessee, Texas, Utah, and Wyoming all have trigger laws. However, according to an analysis from NBC News of data from the Center for Reproductive Rights, 23 states would institute bans in the case that Roe v. Wade is overturned. Meanwhile, the Guttmacher Institute, an abortion-rights group, has reported that there are 26 states that it says will certainly ban the procedure or will likely ban it.

Wisconsin, which is having a number of high-profile federal and state elections this year, has a 173-year-old state ban on abortion that would go into effect if Roe is overturned, since the law predates the 1973 Supreme Court decision. The Wisconsin law would put a ban on all abortions except in the case when two doctors determine the life of the mother is in jeopardy.

“I think this will be a central issue or the central issue in the 2022 election,” said Wisconsin Attorney General Josh Kaul (D), who is facing reelection this year.

Kaul argued that a GOP attorney general in Wisconsin would have the state’s division of criminal investigation conduct investigations into potential violations of the abortion ban instead of investigating more serious criminal offenses.

“You’re talking about investigating people for a very private decision and potentially charging people and putting them behind bars,” he said.

The issue is also rattling Michigan politics ahead of a high-profile gubernatorial and attorney general race in November. Michigan has a 1931 state law banning abortion, even in cases of rape and incest, that was never repealed because Roe v. Wade deemed it unenforceable. Attorney General Dana Nessel has said she would not enforce the law, but she is up for reelection in November.

“When people go to polls this November, this should be first and foremost in the minds of a lot of people because even if you’re not a woman of reproductive age, it’s likely that you know one or that you’re related to one,” Nessel told reporters last week.

In Arizona, a 1901 law passed when Arizona was still a territory would make abortion illegal unless the mother’s life was in jeopardy. It’s unclear whether that law would go into effect if Roe v. Wade is overturned, but in March, Gov. Doug Ducey (R) signed a ban on abortion that bans the procedure after 15 weeks of pregnancy. The ban has no exceptions for rape or incest, only for the life of the mother.

Georgia is also a state that is poised to institute a law that would restrict abortion access in the state. In 2020, the state’s heartbeat law was struck down by federal courts, but the 11th Circuit Court of Appeals moved to put the issue on hold until the Supreme Court ruled on Dobbs v. Jackson Women’s Health Organization. While the law would not automatically go into effect in the case Roe is overturned, the Court of Appeals would likely move to overturn the original federal court ruling deeming the heartbeat law unconstitutional.

In November, Georgia will have a number of closely watched elections, marking nearly two years after Democrats successfully flipped the state from red to blue at the presidential and Senate levels. Much of the Democratic success in the state in 2020 and 2021 has been attributed to Black voters and suburban voters, who Democrats say will be galvanized by the Supreme Court’s decision on Roe.

“In terms of the voters in the suburbs, the people that they’re talking about are women,” said Georgia state Sen. Jen Jordan (D), who is running for state attorney general. “And of course we know that Black women are the most reliable voters, Democratic voters, in the state of Georgia.”

“When we talk about pulling back Roe v. Wade,” she continued, “the impact is really going to be on women of color outside of even the metro Atlanta area.”

Most of the Democratic attorney general incumbents and candidates in these states told The Hill that the issue was politically toxic for Republicans, warning that the legality of the procedure stands to virtually impact all voters in some way.

“You can’t participate in the economy unless you are able to determine when and whether and how to start a family,” said Kris Mayes, a Democrat running for Arizona Attorney General.  “It’s a building block fundamental issue to our economy that women have freedom over their bodies and that government shouldn’t have control over our bodies and our lives.”

Republicans, on the other hand, have criticized the leak of the draft Supreme Court decision itself, arguing that Democrats are using it as a political tactic to influence the Supreme Court and other public offices across the country.

“They’re weaponizing these attorneys’ general offices,” said Arizona Republican attorney general candidate Rodney Glassman. “I believe very confidently that in 2022, the majority of Arizonans do not see abortion as an appropriate form of birth control.”

Adam Jarchow, a Republican challenging Kaul for attorney general in Wisconsin, called the leak “unacceptable” and added that anyone unhappy with the decision should consult the legislative process.

“It’s incredibly important to protect the sovereignty of states and voters from federal overreach,” Jarchow told The Hill. “As Attorney General of Wisconsin, I will enforce the laws that we have on the books. If anyone wants to change the law, they need to work through the legislative process.”

Republicans and anti-abortion advocates have also employed the strategy of painting Democrats as “extreme” on the issue.

“Unlike the extreme Democrat AGs, who are required to support abortion on demand through all stages of pregnancy, the only litmus test for Republican AG candidates is a commitment to supporting and defending the Constitution and rule of law,” Republican Attorneys General Association Executive Director Peter Bisbee told The Hill.

The Susan B. Anthony List, an influential anti-abortion group, rolled out polling conducted in Nevada, Arizona, Georgia, New Hampshire, Wisconsin and Pennsylvania earlier this week. The survey found that 50 percent of likely voters said they were more likely to vote for a GOP political candidate who supports a 15-week ban on abortion versus 30 percent who said they would support a Democratic candidate who supports the procedure until the moment of birth.

Another 51 percent of voters said they believe abortion policy should be decided by the people through state legislatures as opposed to unelected judges.

Still, Democrats point to various polls that show a majority of Americans saying they are in favor of preserving Roe v. Wade. A CBS News poll released earlier this week found that 64 percent of respondents said the high court should uphold the decision, while 36 percent said they disagreed. A separate University of Massachusetts-Amherst survey released this week found that 50 percent of respondents said the decision should not be overturned, while 34 percent said it should be overturned.

“The majority of people in this country favor Roe v. Wade, and they favor access to abortion,” Jennings said. “It should not be a partisan issue, but it is.”