Why are Josh Shapiro and others talking about abortion in Pennsylvania's Supreme Court race?

Josh Shapiro's top argument for retaining Pennsylvania's Supreme Court justices is reproductive rights.

This week a super PAC supporting the retention bid for three of Pennsylvania's Supreme Court justices began running ads that feature a direct plea from the Democratic governor on the issue.

"They've proven we can count on them to protect a woman's access to abortion and birth control," Shapiro said in an ad paid for by Vote Yes for Fair Courts, a group whose ads have been promoted by the Pennsylvania Democratic Party on social media.

Nearly every advertisement running in support of retaining Justices Christine Donohue, Kevin Dougherty, and David Wecht prioritizes abortion rights as the reason Pennsylvanians need to vote yes. Abortion remains legal and accessible in Pennsylvania until the 24th week of pregnancy, but the ads argue that may only remain true if justices who have ruled in favor of access remain on the bench.

Donohue, Dougherty, and Wecht were originally elected in 2015 as Democrats. They are asking voters to retain them for another 10 years in what might be the most hotly contested retention race Pennsylvania has ever seen, which has already broken spending records more than a month before Election Day.

Although the retention race is technically nonpartisan, the advocacy around it has fallen along party lines as Democrats look to maintain the court's 5-2 liberal majority and Republicans, including Shapiro's likely 2026 opponent, Treasurer Stacy Garrity, are backing the efforts to oust the justices. According to a Franklin and Marshall College poll released Thursday, Democrats were more likely than Republicans to say they intended to retain the justices.

In recent years, state supreme courts have become critical battlegrounds for abortion access. The U.S. Supreme Court's 2022 decision ending the federal right to abortion shifted the battle over reproductive healthcare to state courts as Democrats worked to preserve and restore the right. And this year's retention race offers Republicans their best chance to flip the balance of the court.

Unlike those in some states, Pennsylvania's Supreme Court has not ruled that the state's constitution protects a right to abortion. But last year, the court sent a case back to a lower court that challenged a state law limiting Medicaid funds for the procedure and, in doing so, the three justices on the ballot signaled they would be open to finding a state-level abortion right in the future.

Donohue and Wecht said in their opinions at the time they believed Pennsylvania's 1971 Equal Rights Amendment established a right to an abortion. Dougherty wrote that he didn't believe it was the right time for the justices to weigh in the issue but predicted it would inevitably make its way back to the court.

It's unclear at this point how — or when — abortion might be back in front of the Pennsylvania Supreme Court. Litigants could challenge existing restrictions on abortion rights in state law, but it is unlikely that any further restrictions will be passed as long as Democrats retain control of the governor's mansion and the House.

But those in favor of retaining the justices want voters to know that it's possible.

Ads running from pro-retention PACs mention abortion prominently, stating that "antiabortion billionaires are trying to flip control of our state Supreme Court to ban abortion" and reminding voters that the justices have ruled in favor of abortion rights even as "19 other states banned abortion."

On Monday, Planned Parenthood Votes, the political arm of the abortion and reproductive healthcare provider, announced the launch of a six-figure mail campaign to urge retention.

"The Pennsylvania Supreme Court is our last line of defense in the fight to protect access to abortion and other essential healthcare. The outcome of this election could shift the balance of the court and jeopardize these freedoms for millions," Nicole Chung, the organization's Pennsylvania regional campaign director, said in a statement.

In August EMILY's List, which supports female candidates who favor abortion rights, donated $10,000 to Donohue's campaign and Vote for Equality, which supports abortion rights, spent just over $3,000 to engage students in support of Donohue, who would be required to step down when she reaches the state's mandatory retirement age of 75 in 2027.

Meanwhile, abortion has been largely absent from messaging in the GOP campaign to oust the justices. Advertisements have instead framed the justices as members of the "radical left," often citing cases related to election law and the court's decision to overturn Bill Cosby's criminal conviction due to a deal he made with local prosecutors. Polls consistently show voters in Pennsylvania and across the country support abortion rights.

In a statement about Shapiro's appearance in a pro-retention ad, James Markley, a spokesperson for the Pennsylvania GOP, did not directly address the abortion issue. Instead he pivoted to criticizing the judges' rulings on election issues and COVID-19 regulations.

"It's the first time I've heard of Shady Josh Shapiro caring about anything other than his 2028 presidential ambitions, but of course, he couldn't pass up another moment in front of a camera," Markley said.

"It's no surprise that Planned Parenthood and other liberal special interests are dumping money into these retention races. They see the momentum building across Pennsylvania to vote NO on these three activist justices."

While Republicans have shied away from abortion messaging in recent years as polling has shown support for reproductive rights across partisan lines, Democrats have often made abortion rights central to state Supreme Court races and other contests since 2022.

Even though the issue did not prove to be decisive for Democrats in last year's presidential election, it could resonate in an off-year judicial contest, said Chris Borick, a political science professor at Muhlenberg College.

In a race that impacts a lot of issues, Borick said, Democrats will work to make it obvious that abortion is on the ballot.

"I think they've zeroed in on something that they think voters can latch onto in a more concrete way that allows them to build a case why you want to come out for this election," he said.