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Abortion access in Illinois at stake in upcoming Supreme Court elections

Voters will choose which party controls the Illinois Supreme Court on Nov. 8.

By Matt Cohen - November 03, 2022
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Side angled shot of the front of the Illinois Supreme Court building
The Illinois Supreme Court building

State supreme court races have emerged as some of the most consequential down-ballot contests in the nation this election season. In Illinois, where Democrats hold a slim 4-3 majority on the Supreme Court, the consequences of the race for two seats on the court could be enormous.

Seats on the Illinois Supreme Court are filled by elections in five judicial districts, with three from the 1st District, which includes Cook County, and one each from the other four. Two of the Supreme Court’s seven seats — in the 2nd and 3rd judicial districts — are on the ballot on Nov. 8. If Republicans flip just one seat on the court, it will have a conservative majority for the first time since 1969.

Conservative control of the state’s highest court could threaten abortion access in Illinois, which currently allows abortion until fetal viability, generally between the 24 and 36 weeks into a pregnancy. Political experts and advocacy groups worry that the outcome of the race could also affect state gun laws, criminal justice laws, and workers’ rights.

In the state’s 3rd Judicial District, incumbent Republican Justice Michael Burke is facing a challenge from Democratic Appellate Court Justice Mary Kay O’Brien. In the state’s 2nd Judicial District, Republican Mark Curran, a former Lake County sheriff who has never held a judicial position, is squaring off against Lake County District Court Judge Elizabeth Rochford, a Democrat, to fill a vacancy on the court.

In the wake of the U.S. Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion nationwide, the issue of abortion rights is dominating both races in Illinois now that it is up to the states to decide.

In 2019, the Illinois Legislature repealed a law restricting abortion that had been rendered unenforceable by the U.S. Supreme Court’s Roe v. Wade ruling in 1973 affirming abortion rights. But if the GOP successfully flips just one seat on the Illinois Supreme Court, the court could overturn the state’s current abortion law.

Although these races are partisan, candidates aren’t supposed to take a stance on political issues such as abortion before it comes before them in a case, according to Illinois’ Code of Judicial Conduct.

Despite this, both the Democratic and the Republican candidates have found ways to put abortion front and center. Rochford’s campaign website includes a section called “Why the Court Matters,” which includes the statement “State Supreme Courts wield tremendous power over state laws like abortion access, redistricting maps, and election implementation. It is imperative that voters understand that state Supreme Court elections can affect them as much as a presidential or gubernatorial race would.” Her website also features endorsements from the pro-abortion rights groups Planned Parenthood Illinois Action and Personal PAC.

Television ads circulating on the Illinois airwaves for O’Brien and Rochford, the two Democratic candidates, highlight their pro-abortion rights stance, albeit not explicitly. A recently launched ad produced by a PAC supporting O’Brien’s campaign says: “Now, with Roe v. Wade being overturned, women’s freedom to choose in Illinois is at risk. Justice O’Brien is endorsed by Personal PAC and other pro-choice groups.” An ad paid for by All for Justice, a super PAC supporting O’Brien’s and Rochford’s campaigns, focuses on Curran and Burke’s anti-abortion stances.

Curran, who positioned himself as an extreme anti-abortion candidate in an unsuccessful campaign against incumbent U.S. Sen. Dick Durbin in 2020, has spent significant time campaigning across the state, expressing his staunch opposition to abortion in all forms.

Because of the high stakes of this race, a lot of money is flowing to support the candidates. JB Pritzker, Illinois’ Democratic governor, who signed a bill last year to ban dark money and out-of-state money in state judicial races, has personally contributed $500,000 to both O’Brien’s and Rochford’s campaigns.

Ken Griffin, the founder of the hedge fund Citadel LLC and the wealthiest man in Illinois, is contributing millions of dollars to a political action committee supporting both Curran and Burke.

Although Democrats have had a reliable stronghold on Illinois’ Supreme Court for decades, a judicial election in the state’s 3rd District in 2020 cast doubt on the future of their majority on the court. Justice Thomas Kilbride, a Democrat who had held the 3rd District seat since 2000, lost his retention election, triggering an appointment to fill the seat until this year. It was the first time in Illinois history that a state Supreme Court justice had lost a retention vote. A PAC called Citizens for Judicial Fairness backed by Griffin contributed millions of dollars to work for Kilbride’s defeat.

In response to Kilbride’s defeat, the Democratic supermajority in the state Legislature voted to redraw the district boundaries for the first time since 1964. As a result, the state’s 2nd and 3rd districts were significantly altered in a way that gives Democratic candidates an edge.

Kent Redfield, a professor emeritus of political science at the University of Illinois at Springfield, told the American Independent Foundation that while the new maps help the Democratic candidates, “It does not guarantee they will retain a partisan majority on the court after the election, but their odds are much better under the new map than under the old map.”

Redfield points out that spending has been extremely heavy through both candidate committees and independent expenditure groups. “There is no guarantee of the outcome of the 2022 elections in the 2nd and 3rd,” Redfield said, “but the Democrats are in much better shape than they would have been under the old judicial map.”

Published with permission of The American Independent Foundation.


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