Judicial retention is usually a foregone conclusion during election season, but an effort to remove three Indiana Supreme Court justices who upheld Indiana’s abortion ban is causing a stir this year.

Chief Justice Loretta Rush, Justice Mark Massa and Justice Derek Molter are up for retention, along with two appeals court judges. That means Hoosier voters can choose to keep them on the bench or end their judicial careers.

Rush pushed voters to examine more than the abortion ban case while making retention decisions.

“We appoint judges in Indiana based on merit selection,” Rush said. “My concern would be, if you take one issue and say, ‘We’re going to send a message on this one issue,’ and not looking at the body of work. I worry about our branch of government becoming political, and judges saying, ‘Which way are the political winds going on a case?’ to make a decision.”

No supreme court justice has lost a retention vote since the process was instituted in 1970, according to the Indiana Lawyer.

A new survey released by the Indiana State Bar Association shows about 84% of its members support retaining the justices.

“Allowing retention elections to become a referendum on one or two high-profile cases threatens to distort the judicial process and compromise the courts’ ability to function independently,” the group said in a written statement. “Our system of judicial selection for Indiana’s appellate courts, though not without imperfections, is designed to minimize the influence of partisan politics and special interests.”

Indiana has used a merit selection process to choose and retain its appellate judges for the past 50 years. Once appointed, a judge must stand for retention at the first statewide general election after the judge has served for two full years. If retained, the judge is on the retention ballot every 10 years. The retention system is designed to allow appellate judges to decide cases fairly and impartially, free from campaign finance considerations, and without influence by partisan politics.

“There are cases that we may not like where the law takes us on a particular case, but we take an oath with regard to following the law … and we take that oath very seriously,” Rush said. “I see what you see. I’m aware of it and I’m concerned long-term.”

If removed, the next governor would get to appoint replacements. Much like the president and the U.S. Supreme Court, the governor’s political party can influence how they make their judicial picks, such as pushing them further right or left.

A social media campaign has latched onto the abortion ruling in a quest to remove the three members. A citizen named Jeanne Tuka Schutz recently ran an ad in the Warsaw Times Union urging a “no” vote on the three justices.

“All three voted to strip away HOOSIER WOMEN’S RIGHTS TO ABORTION AND REPRODUCTIVE HEALTH CARE,” the ad said. “Indiana Supreme Court Justices seem to be in lock step with extreme right-wing leaning decisions of the U.S. SUPREME COURT. Hoosiers can fire these three when voting.”

The Indiana Lawyer recently reported that a bipartisan political action committee of prominent attorneys and former state justices has formed to help keep the three Republican-appointed justices on the court.

PAC chairwoman Deborah Daniels — former governor Daniels’ sister — said the Committee to Preserve the Indiana Supreme Court has formed to educate voters about the justices and fend off potentially catastrophic consequences.

In the unlikely event that all three justices on the ballot this year were voted off, the state supreme court would essentially cease to operate — at least temporarily — until the Indiana Judicial Commission selected finalists for the posts and the governor selected appointees from among them, legal experts say.

Two members of the Indiana Court of Appeals are also up for retention.

This story was initially posted to the Indiana Capital Chronicle. Learn more here.