Will voters oust Indiana Supreme Court justices over abortion decision on Election Day?

Voters in Indiana don’t get a direct say in who gets to serve on the Indiana Supreme Court, but they do get to weigh in this fall on whether some of those justices get to stay in their roles.

Three of five Indiana Supreme Court justices will be up for retention vote on Nov. 5. Voters will be asked whether Chief Justice Loretta Rush, Justice Mark Massa and Justice Derek Molter, all appointed under Republican governors, should serve additional terms.

While judge retention elections are typically sleepy affairs in Indiana, that isn’t true this year. The retention question has attracted more attention due to past court decisions: namely, upholding Indiana’s abortion ban.

The Indiana Supreme Court upheld Indiana’s near-total abortion ban in 2023 in a 4-1 decision. Molter wrote the opinion, to which Rush and Massa agreed, that the state has an interest in “protecting prenatal life” and that the Indiana General Assembly “retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”

That has led to a campaign against them from abortion-rights voters who want to make their displeasure heard over the court’s decision.

“Justices Rush, Massa, and Molter are responsible in part for Indiana’s abortion ban,” according to a Facebook post from MADVoters Indiana, an advocacy group that has been supporting Indiana’s Democratic candidates. “We can hold them accountable for their decision at the ballot box.”

Meanwhile, a group called the Committee to Preserve the Indiana Supreme Court recently launched to defend the records of Rush, Massa and Molter.

“The court’s body of work shows a dedication to the constitution and interpreting the law as written,” according to the group’s Facebook page. “You won’t find judicial activists on the Indiana Supreme Court. Because here, they interpret the law — they don’t write it.”

Who are the justices?

All of the justices on the Indiana Supreme Court were appointed by Republican governors after a merit selection process by a judicial commission. The three up for retention vote this fall are:

• Chief Justice Loretta Rush: appointed by Gov. Mitch Daniels in 2012 and first retained by voters in 2014. She was named the state’s first woman chief justice in 2014. She was a longtime attorney in the Lafayette area and served as a superior court judge in Tippecanoe County. She has worked at the national level to address issues including courts’ responses to the mental health crisis through the Conference of Chief Justices and served as chair of the National Judicial Opioid Task Force.
• Justice Mark Massa: appointed by Gov. Mitch Daniels in 2012 and first retained by voters in 2014. Massa started his career as a journalist in Indiana and then entered politics, serving under former Gov. Robert Orr. He then was a deputy prosecutor and an assistant U.S. attorney in the Southern District of Indiana. He also was part of the Daniels administration, serving as general counsel.
• Derek Molter: appointed by Gov. Eric Holcomb in 2022. This is Molter’s first retention vote. He most recently served on the Court of Appeals and is from Newton County. He used to be a partner in Ice Miller law firm’s litigation practice group, where he worked on appeals in state and federal courts.

What is the judicial retention process?

Indiana’s judicial retention process serves as a “check on their performance” at periodic intervals, according to the Indiana Judicial branch website. It was put in place in 1970 after Indiana voters approved a constitutional amendment.

“Judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention,” according to the Indiana Judicial Branch website.

If one or more of the judges is not retained, Indiana would use the judicial nomination commission to select a new lawyer, and the Indiana governor would make the appointment from a list of nominees by the commission.

“Once appointed, a justice or judge must stand for a retention election at the first statewide general election after the justice or judge had served for two full years and, if retained, every 10 years thereafter,” according to the Indiana Judicial Branch.

A referendum on abortion?

Some abortion-rights voters appear to be using the retention votes as a way to express displeasure over the state’s near total abortion ban.

The outcome of the retention vote wouldn’t directly impact the state’s ban, however. It could even backfire for abortion-rights voters, wrote Sheila Kennedy, an emerita law and public policy professor at Indiana University’s School of Public and Environmental Affairs, since a Republican governor would likely be in charge of the judicial nomination process, barring an upset win by Democratic governor candidate Jennifer McCormick.

“I share the anger of people who oppose Indiana’s ban, but our animus should be directed at the legislature–not at a court that, rightly or wrongly, held that the legislature had authority to act,” Kennedy wrote in a recent blog post.

Outgoing state Rep. Jerry Torr, R-Carmel, said in a Facebook post that he believed the justices are “always fair, unbiased and objective” even if he doesn’t agree with them.

“It’s quite possible that one or more of the justices might even have voted against the bill had they been in the legislature,” Torr said. “Their decision was not about whether the law was appropriate, but simply whether or not it was constitutional.”

What do Indiana lawyers think?

Hundreds of members of the Indiana State Bar Association expressed support for retaining all three judges in its latest retention poll, released Oct. 8.

Rush had the strongest support among those polled, with 88% of the 397 respondents voting saying she should be retained. Massa and Molter each had support of 84% of those polled.

“Lawyers are uniquely qualified to evaluate members of the judiciary, as it’s important to evaluate a judicial officer on their track record rather than a single ruling,” according to a press release from the bar association.

The poll, however, represents a small slice of lawyers in Indiana. There were 6,901 attorneys who were invited to take the poll and the organization has about 10,000 members.

Hayleigh Colombo is the senior government accountability reporter from IndyStar. She can be reached at hcolombo@indystar.com.