To backers of initiatives intended to enshrine abortion rights in Missouri’s constitution, the proposed ballot titles written by Secretary of State Jay Ashcroft are poison intended to lead to certain defeat at the polls.
But an attorney for Ashcroft, arguing Monday to keep the ballot title intact, said the ballot language that begins by saying the measures would “allow for dangerous, unregulated, and unrestricted abortions” accurately portrays its impact.
For more than two hours Monday, Cole County Circuit Judge Jon Beetem listened to those arguments – and a challenge to the initiatives’ predicted financial impact on state and local government. At the end, Beetem gave attorneys one week to file final briefs in a case that is almost certain to be appealed regardless of how he rules.
Abortion became illegal in Missouri in June 2022 when the U.S. Supreme Court overturned the landmark Roe v. Wade decision that recognized a constitutional right to abortion. The only exception is for emergency abortions to save the life of the mother or when there is “a serious risk of substantial and irreversible physical impairment of a major bodily function.”
Voters in several states, most notably Kansas and Michigan, have backed abortion rights ballot measures. In Missouri, hoping to capitalize on that momentum, a political action committee called Missourians for Constitutional Freedom in March filed 11 proposed initiatives that would amend the state constitution to declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.”
Under state law, Ashcroft prepares ballot language that summarizes the proposal in a way that is “neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.”
The ACLU of Missouri filed the lawsuit challenging the ballot title on behalf of Anna Fitz-James, the physician who is the named sponsor of the initiatives.
Ashcroft’s proposed ballot language is insufficient because it only addresses abortion while the amendment also covers other aspects of reproductive health care, Tony Rothert, legal director of the ACLU of Missouri, said in court on Monday.
“The secretary acted as if he were playing the political spin edition of mad libs,” Rothert said. Ashcroft “abandoned any pretext of doing his job impartially.”
But Assistant Attorney General Jason Lewis, representing Ashcroft, said the proposals’ provisions are plain. Language that bars the state from prosecuting unlicensed individuals who assist in abortions make the proposals dangerous, he said.
It is “used properly to describe the unregulated landscape these initiatives would create,” Lewis said.
Supporters of the initiatives haven’t decided which they intend to circulate. To make the 2024 ballot, backers must secure more than 170,000 signatures from registered voters by early May.
Each version of the proposed amendment says there must be a “compelling governmental interest” for abortion restrictions to be put in place. But while some allow the legislature to regulate abortion after “fetal viability,” others draw the line at 24 weeks of gestation.
Some versions make it clear the state can enact parental consent laws for minors seeking abortions. Others leave the topic out entirely.
The case heard money drew a lot of outside interest, with groups as divergent as Susan B. Anthony Pro-Life America and the Missouri League of Women Voters filing “friend of the court” briefs to influence Beetem’s decision.
Writing for the American Center for Law and Justice and the Susan B. Anthony group, attorney Brad Blake said the petition itself is misleading so the challenge to the language is hypocritical.
“The present case presents the odd and ironic situation of the proponent of grossly biased and euphemistic initiative petitions complaining about the alleged argumentativeness of ballot summaries,” Blake wrote.
Former Missouri Supreme Court Chief Justice Mike Wolff wrote the brief for the League of Women Voters asking Beetem to throw out the summary.
“When reading the language of the secretary’s ballot summary statement and comparing it to the citizen-submitted petition, it is difficult to imagine a summary statement more unfair, distorted, misleading, and argumentative,” Wolff wrote.
The hearing Monday is the second round of litigation over the initiatives. The first round tested how much authority the attorney general’s office has over the content of the fiscal summary that also appears on the ballot.
In July, the Missouri Supreme Court ruled against Attorney General Andrew Bailey, who had refused to accept the fiscal summary prepared by State Auditor Scott Fitzpatrick. The court ruled that nothing in state law “gives the attorney general authority to question the auditor’s assessment of the fiscal impact of a proposed petition.”
Fitzpatrick wrote that the impact on state agencies was unknown, that local governments estimated a possible cost of at least $51,000 in reduced revenues and opponents “estimate a potentially significant loss to state revenue.”
In court on Monday, Beetem heard arguments in a challenge to that fiscal summary filed by state Rep. Hannah Kelly, R-Mountain Grove, state Sen. Mary Elizabeth Coleman, R-Arnold, and Kathy Forck, a longtime anti-abortion advocate from New Bloomfield.
Mary Hodes, representing Kelly, Coleman and Forck, told Beetem that Fitzpatrick’s summary ignored material prepared by opponents that showed huge potential costs, including a possible loss of federal Medicaid funding and future tax revenue.
The specific impact on local governments was based on a response from Greene County that calculated lost tax revenue from a likely 135 abortions among residents of the county in the first year it was again legal to terminate a pregnancy in Missouri.
Hodes said that calculation should have been expanded to cover every county in the state. Five separate submissions arguing for larger amounts were ignored, she said.
The $51,000 figure is misleading because it is so precise, Hodes said. And the summary of opponents estimates is misleading because it says “potentially significant” when they showed the cost would be enormous
“There is nothing ‘potentially significant’ about the losses to the state,” Hodes said.
Robert Tillman, Fitzpatrick’s deputy general counsel, argued Monday that the auditor’s office is not asked, nor does it have time, to do a complete, independent review of the possible costs. It surveyed state agencies and local governments, took submissions from the public and summarized the result, he said.
And Tori Schafer of the ACLU of Missouri said while Hodes is arguing it should include lost revenue from taxpayers who are never born, she could as easily argue that it will save taxpayers money on services like public schools.
