Appeals court hears arguments over ballot title for Missouri abortion amendment

A panel of judges will decide whether summaries of the initiative petition should be rewritten

By: - October 30, 2023 2:25 pm

Missouri Attorney General Andrew Bailey speaks to reporters Monday outside the Western District Court of Appeals building in Kansas City while Secretary of State Jay Ashcroft waits for his turn the microphones. Bailey and Ashcroft had just attended arguments over the abortion initiative ballot titles rewritten by a Cole County judge (Rudi Keller/Missouri Independent).

KANSAS CITY – Abortion rights initiatives proposed for the 2024 Missouri ballot would make it impossible for the state to protect women from unsanitary conditions at clinics, attorneys representing Secretary of State Jay Ashcroft argued to  a panel of judges on Monday.

The restrictions on government regulation of abortions contained in the petitions would make safety and sanitation regulations unconstitutional, assistant attorney general Josh Divine told the Western District Court of Appeals.

“Under these petitions, every abortion becomes a back-alley abortion,” Divine said.

Ashcroft, who is an attorney, added his name to the list of attorneys representing his office but did not speak during the court hearing. He is  appealing a decision issued late last month that struck down his ballot summary for six proposals that would amend the Missouri Constitution to enshrine a right to abortion.

The petitions limit the ability of the strongly anti-abortion General Assembly to enact restrictions in place before abortions became illegal in 2022 such as waiting periods and that abortions only take place in licensed ambulatory care clinics.

The court did not rule at the end of arguments but is expected to make a decision fairly quickly. The ruling is almost certain to be appealed again to the Missouri Supreme Court.

The case concerns six of the 11 versions Anna Fitz-James, a St. Louis physician, filed with Ashcroft’s office in March on behalf of a political action committee called Missourians for Constitutional Freedom. 

The ACLU of Missouri sued Ashcroft on Fitz-James’s behalf, arguing the secretary of state violated his duty to write impartial language that only summarizes the initiative. In his decision against Ashcroft’s ballot titles, Cole County Circuit Judge Jon Beetem concluded  that “certain phrases included in the secretary’s summary are problematic in that they are argumentative or do not fairly describe the purposes or probable effect of the initiative.” 

In his ruling, Beetem wrote that the problematic phrases Ashcroft used in his summary, which must be 100 words or less, include statements that the initiatives would allow “dangerous, unregulated and unrestricted abortions,” that abortion would be allowed “from conception to live birth” and could be performed by anyone “without requiring a medical license” or “potentially being subject to medical malpractice.”

In asking the three-judge panel to uphold Beetem’s decision, Tony Rothert, legal director of the ACLU of Missouri, said Ashcroft let his own views override his duty.

Ashcroft “pushed personal policy preferences over choosing an impartial summary statement,” Rothert said.

Tony Rothert, legal director of the ACLU of Missouri, speaks to reporters Monday outside the Western District Court of Appeals building in Kansas City. Rothert had just argued in favor of keeping abortion initiative ballot titles rewritten by a Cole County judge (Rudi Keller/Missouri Independent).

During his arguments, Divine said that provisions in Missouri law barring a woman from terminating a pregnancy because of the sex, race or other characteristic would be unenforceable. Judge Edward Ardini asked Rothert about that provision and a portion of Ashcroft’s statement that Missouri would be barred from discriminating against abortion providers in other programs.

Any statements about what would be and what would not be allowed as regulation of abortion is speculation, Rothert said.

“Nothing in the summary statements changes anything in Missouri law now,” Rothert said.

At a news conference after the hearing, Ashcroft said he used the most neutral language possible to describe the initiative.

“My official job in regards to an initiative petition is to tell the truth,” Ashcroft said. “If that is inferred as argumentative language, it is because the initiative petition required it.”

Along with the 100-word summary, initiatives also carry a summary of their financial impact on state and local governments of up to 50 words. That fiscal note summary became the focus of an initial round of litigation over the initiatives when Bailey refused to certify the language written by State Auditor Scott Fitzpatrick.

That case ended in July when the Missouri Supreme Court ruled Bailey had no authority to question the contents of Fitzpatrick’s fiscal note summary. 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, filed a challenge to the fiscal note summary, arguing that the state could lose federal Medicaid funding and trillions in future tax revenue.

Beetem upheld Fitzpatrick’s summary and on Monday, a separate panel of judges from the ballot title case heard an appeal. 

Mary Catherine Martin, representing Kelly, Coleman and Forck, argued that Fitzpatrick had a duty to do more than just collect statements about the fiscal impact and summarize them.

“It raises many more questions than it answers and it fails to inform voters,” Martin said.

Robert Tillman, representing Fitzpatrick, said the summary is the best analysis Fitzpatrick could make in a limited time. 

“If there are costs and savings, they would have been included in the fiscal note summary,” Tillman said.

The judges did not rule but from the questions, they seemed ready to back Fitzpatrick.

“It just seems like an auditor trying to do his job and he’s not getting a lot of information,” Judge Mark Pfeiffer said.

By law, it should take no more than 56 days after filing an initiative petition for the secretary of state to have a summary ready for circulation and signature gathering. The court battles have delayed signature gathering by seven months.

To make the 2024 ballot, backers must secure more than 170,000 signatures from registered voters by early May. Time is getting short, Rothert noted.

“Whether or not there will be enough time will depend on the people of Missouri,” he said, “and whether they are interested in it enough that it is possible to collect the signatures.”

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Rudi Keller
Rudi Keller

Rudi Keller covers the state budget and the legislature. A graduate of the University of Missouri School of Journalism, he spent 22 of his 32 years in journalism covering Missouri government and politics for the Columbia Daily Tribune, where he won awards for spot news and investigative reporting.