Most voters are unaware of it, but abortion rights in NC and across the country could be one election away from falling. Abortion Rights In Peril
Most voters are unaware of it, but abortion rights in NC and across the country could be one election away from falling.

The state Supreme Court might be the last stand for abortion rights. If that’s the case, there’s a lot at stake in this fall’s election of two seats that have not attracted nearly as much attention from the public. 

Abortion rights in North Carolina might come down to this fall’s elections for two seats on the state Supreme Court.

It’s not far-fetched at all.

With Roe v. Wade’s federal protection of abortion rights gone, anti-choice Republicans in the state legislature are just a few seats away from winning a supermajority this fall, allowing them to override Gov. Roy Cooper’s veto of any new legislation restricting abortion

This hypothetical anti-abortion legislation would likely face a challenge in state court, potentially making N.C.’s high court the last bulwark for abortion rights.

What Court Seats Are Up for Grabs?

There are seven justices on the state supreme court, and two of those seats are open this year.

In a very purple state, those elections are expected to be close. 

In 2022, for example, Cheri Beasley, now the state’s Democratic candidate for U.S. Senator, lost the race for chief justice to Paul Newby by 401 votes out of 5.4 million cast. And the margins in the state’s other judicial races were also close, if not quite that thin. 

Democrats hold a 4-3 majority in the N.C. Supreme Court, but both seats up for election this year belong to Democrats, which means Republicans need only to win one of them to change control and reshape the direction of the court. The N.C. Supreme Court will be the key battleground on several vital issues over the next few years, including abortion rights. 

The Democrats running are nearly certain to uphold abortion protections in the state constitution, but what about the Republican judges?

Here’s Who Is Running

In Seat 3, Democrat Robin Hudson is retiring, and Democrat Lucy Inman is running against Republican Richard Dietz to replace her. Both Inman and Dietz are judges on the NC Court of Appeals.

And in Seat 5, incumbent Democrat Sam Ervin is running for re-election against Republican Trey Allen.

North Carolina is one of only a few states to hold partisan elections for state judges. While the candidates for these positions are often more restrained than public office seekers in their campaigning, political groups pour huge amounts of money into these races on their behalf and there is little doubt among those working to get them elected about which direction a judge is expected to vote on major issues. 

A lack of specific public statements or pledges, however, can make it more difficult for voters to gauge what a judge would do in high profile cases. 

Still, beyond the obvious party line calculus, a prospective voter can learn a lot about judges by their stated overall judicial philosophies. 

‘Originalism’

The Dobson decision was a victory for proponents of “originalism,” a judicial philosophy that says the Constitution must be judged by the strict adherence to the founders’ intent, not to the evolving views of subsequent generations. 

Because the Constitution does not mention the word abortion, this theory says, there can be no inherent right to it, or to privacy at large. It was on this general grounds that the Republican majority struck down Roe. v. Wade.

Most of the U.S. Supreme Court justices who voted to overturn Roe this year are originalists. 

So is Allen.

“We have a chance to get the court a majority of justices that believe in that originalism philosophy,” Allen told the Daily Advance in Elizabeth City ahead of the May primaries. 

“It’s vital that we have the right people on the court.’’

Allen, who is general Counsel for the NC Administrative Office of the Courts but has never held a judgeship, also said in a questionnaire put together by the NCBOE that he would “follow the text and original understanding of the Constitution.”

The word “originalism” is not on Dietz’s website, but he told the podcast Right of Passage in 2021 that most conservative judges tend toward that philosophy.

“If scholars looked at my opinions,” he said, “they would describe me as an originalist, and I think that’s fair.”

He added: “But just to be candid about it, [originalism] does have some flaws.”

Who’s Endorsing Them?

You can also tell a lot about a judge by the people trying to get them elected.

Allen has received several endorsements from groups that have called for abortion to be banned, including the NC Values Coalition, a far-right group that has called for a return to Christian values and has spoken out against federal efforts to protect same-sex marriage.

Allen has also received endorsements from most of the state’s Republican elected officials, including U.S. Rep. Virginia Foxx, U.S. Rep. Dan Bishop and  state Senate Majority Leader Phil Berger Sr., all of whom have voted for or suggested they would enact abortion bans in the state.

Dietz has also endorsed Allen.

What About Dietz?

Dietz, the other GOP candidate for the state Supreme Court, is harder to pin down. Though there is no question that he is the preferred candidate among Republicans, none of these clear anti-abortion advocates and officials are listed as endorsements on his website. 

He has been endorsed by the North Carolina Association of Defense Attorneys, which over the years has endorsed both Republican and Democratic judges, including Inman in her 2020 state Supreme Court race against Phil Berger Jr. 

Most voters, Dietz told the podcast Right of Passage, assume that a judge’s political party gives them a good guide to how the judge would rule. And for the most part, he said, they would be right.