ACLU asks judge to force state to finalize ballot summary for Missouri abortion amendment

Supporters of an abortion-rights initiative petition contend the attorney general acted unlawfully when he pressed the state auditor to increase the projected cost of the proposal

By: - May 4, 2023 1:43 pm
A stone government building on a cold, grey day

The Cole County Courthouse in downtown Jefferson City (Annelise Hanshaw/Missouri Independent).

The ACLU of Missouri is asking a Cole County judge to force the secretary of state’s office to finalize its work on an abortion-rights initiative petition so proponents can begin collecting signatures. 

The legal maneuver, which was filed Thursday afternoon, comes after The Independent revealed a behind-the-scenes push by Missouri Attorney General Andrew Bailey to convince the state auditor’s office to increase the projected cost of the abortion amendment. 

State Auditor Scott Fitzpatrick refused, arguing in correspondence obtained through the Missouri Sunshine Law that the attorney general is trying to include “inaccurate information” in the fiscal summary that would appear on the ballot. 

Because Bailey won’t sign off on Fitzpatrick’s fiscal note, Secretary of State Jay Ashcroft can’t finalize work on the summary. That means proponents can’t start collecting signatures to place the issue on the statewide ballot next year.  

“The unilateral actions of the unelected attorney general to hold hostage the people’s constitutional right to the initiative process is an attempt to subvert direct democracy to prevent Missourians from voting on the fundamental right to reproductive freedom,” said Anthony Rothert, director of integrated advocacy for the ACLU of Missouri. 

Missouri auditor says AG trying to falsely inflate projected cost of abortion amendment

Eleven versions of a proposed initiative petition seeking to roll back Missouri’s ban on abortion by adding protections for the procedure to the state constitution were filed in early March with Ashcroft’s office. 

The proposals would amend the constitution to declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.” That would include “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.” 

Penalties for both patients seeking reproductive-related care and medical providers would be outlawed.

Before a proposed initiative petition may be circulated for signatures, the secretary of state sends it to the auditor to create a fiscal note and a fiscal note summary that states “the measure’s estimated cost or savings, if any, to state or local governmental entities.”

Fitzpatrick’s office consulted with state and local governments, and heard from opponents of the proposal, to craft a fiscal summary that stated there would be “no costs or savings” due to the abortion amendment. 

The summary said one local government entity estimates losing at least $51,000 in reduced tax revenues, and that opponents of the proposal contend it could lead to significant loss in state revenue. 

Fitzpatrick submitted his work to Bailey’s office, which is tasked with approving the legal content and form of the summary.

Bailey refused to approve the summary, arguing that it should say that the amendment could cost the state at least $12.5 billion in lost Medicaid funding, as well as possible loss of tax revenue as “aborting unborn Missourians will have a deleterious impact on the future tax base.”

In a letter to the attorney general, Fitzpatrick stood behind his office’s work. 

“As much as I would prefer to be able to say this (initiative petition) would result in a loss to the state of Missouri of $12.5 billion in federal funds, it wouldn’t,” Fitzpatrick wrote. “To submit a fiscal note summary that I know contains inaccurate information would violate my duty as State Auditor to produce an accurate fiscal note summary.”

While Bailey blocked a fiscal note from being completed, he did sign off on the ballot summary written by Secretary of State Jay Ashcroft that says the proposed constitutional amendment would allow “dangerous, unregulated and unrestricted abortions” and “nullify long standing Missouri law protecting the right to life,” among other provisions.

In its Thursday court filing, the ACLU telegraphed a future lawsuit challenging Ashcroft’s ballot summary, saying the secretary of state’s work is “insufficient and unfair” and will require proponents to “ask the court for different summary statements.”

JoDonn Chaney, Ashcroft’s spokesman, said the secretary of state intends to “follow the law.”

Regarding the lawsuit, “we have yet to be served,” he said.

Fitzpatrick’s spokesman declined comment, and the attorney general’s office reiterated its previous statement that it would “continue to use every tool at our disposal to defend the sanctity of life.”

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Jason Hancock
Jason Hancock

Jason Hancock has spent two decades covering politics and policy for news organizations across the Midwest, with most of that time focused on the Missouri statehouse as a reporter for The Kansas City Star. A three-time National Headliner Award winner, he helped launch The Missouri Independent in October 2020.