The U.S. Supreme Court’s decision to overturn Roe v. Wade was a devastating attack on freedom and equality. It stripped millions of people of their fundamental rights, put countless physicians and clinics in legal jeopardy, and was a huge step back for women’s equality. For years, Roe was a thin legal safeguard for abortion seekers in states where local laws banned or severely restricted abortion. Now that trigger bans have gone into effect in more than a dozen states, it is clearer than ever that the fight to win back and guarantee abortion rights is in the states.
Anti-abortion extremists have invested at the state level for decades now, steadily eroding abortion rights and access by altering state constitutions, focusing on ballot measures and pushing legislation that put abortion out of reach or classified it as a criminal offense. But efforts to protect access to abortion at the state level have lagged behind. While we still need investments in federal legislation to reclaim abortion access and protect against criminalization, most critical right now are significant investments at the state level, from new and long-standing funders, to push back against the anti-abortion efforts sweeping across the country. And with that support, we know we can win, because we have done it before.
In Kansas, people from every walk of life, from across the political spectrum and from various faiths, came together to reject an effort that would have stripped abortion protections from the Kansas constitution. As funders, we recognized the need to invest early to support abortion access electoral work in Kansas back in 2019, and we have funded efforts from Kansans for Constitutional Freedom, Unite for Reproductive & Gender Equity (URGE) and Loud Light, all of which helped pave the way for the win at the ballot box in August.
And now, we have the opportunity — and the obligation — to bring similar investments to states like Michigan, Ohio, North Carolina and Kentucky, where abortion rights will be on the ballot in November.
There are two core areas of investment that get results: state Supreme Court races and ballot measure campaigns.
State courts are at the heart of our democracy and are an underresourced opportunity for establishing a diverse pipeline of candidates supportive of gender and reproductive equity. As funders, we cannot ignore these races. State courts hear 90% of cases in our country, and in every state, they play a substantial role in determining whether abortion restrictions will be enforced. Judges also make rulings on significant issues from cash bail to drug sentencing, custody, deportation, anti-trans laws and other discrimination due to gender, sexual orientation, disability, race and other identities.
A lack of education around the importance of these races leads many voters to skip over them on the ballot or choose a candidate at random. And because of this, state court judges, and therefore candidates for the Supreme Court, are overwhelmingly older, white, conservative men making life and death decisions about abortion access. State court judges wield enormous power, so we must make sure they are operating in service of our democracy, not against it.
This means funding the expansion of pipeline work to encourage a more diverse group of judicial nominees and candidates, supporting critical nonpartisan voter education efforts about the courts’ impact on the issues voters care about, and investing in education and capacity-building to empower local and state advocates to view the courts as part of their power-building strategy.
Additionally, we should take what we learned from ballot measure fights in Kansas this year and Colorado in 2020 to energize wide audiences to defeat efforts that would curtail abortion access and support those that would protect it. While our work to build a pipeline of representative candidates and educate voters about state court races is critical to create fair state courts, it will take time to yield results. That is why investing in ballot measure campaigns, like the one in Kansas and current efforts in Michigan, Vermont and California, is a key short-term tactic that can lead to more immediate results.
Overhauling state courts and winning ballot measure campaigns require different kinds of work, but they are two pieces of the same funding strategy to build a fairer and more representative democracy and to protect abortion in line with the will of the majority of Americans.
Most people believe that the freedom to make decisions about one’s own body is a fundamental right. But for decades, funders of gender and reproductive equity and many others in this fight have been outspent by those with extremist views who have gerrymandered, stacked state legislatures with conservatives and remade state constitutions to ban abortion, block contraception access, limit paid leave, slash voting rights, flood our communities with guns and traumatize queer young people. And too often, grantmakers outside of the gender and reproductive equity space have believed abortion is strictly a women’s issue or overlooked the connection between attacks on abortion rights and other attacks on our democracy.
We need funders to recognize that attempts to limit abortion are intended to control people’s bodies, insert political and religious ideology where it does not belong, and further undermine the rights of already marginalized groups. Even those who do recognize this often focus more on the federal level, leaving state-based organizations to scramble once a national decision has been made, or choose not to invest in priority states that they deem “lost causes,” which leads to underinvestment in states that need support most.
To be sure, we must continue working to influence federal legislation like the Women’s Health Protection Act and executive actions to expand access to abortion pills and override state criminalization efforts when possible. But we know that the fight to win back abortion rights is in the states. To achieve this, we need funders directing their investments to funder collaboratives and local grassroots and advocacy organizations — specifically, organizations that are led by and center the needs of Black, Indigenous and people of color communities — with short-term and long-term strategies focused on state court races and combating anti-abortion ballot measures across the country. Now let’s step up and help make it happen.
Brook Kelly-Green is Senior Director, Gender and Reproductive Equity at Charles and Lynn Schusterman Family Philanthropies. Cristina Uribe is Director of Advocacy + Political Strategy at the Gender Equity Action Fund (GEAF).