By RUDI KELLER, Missouri Independent
Secretary of State Jay Ashcroft wrote ballot titles for six proposals to restore abortion rights that were “replete with politically partisan language,” a Missouri appeals court unanimously ruled Tuesday.
In an expedited decision issued a day after hearing arguments, a three-judge panel of the Western District Court of Appeals upheld, with only minor revisions, the revised ballot titles written by Cole County Circuit Judge Jon Beetem.
In a decision by a separate panel, the court upheld the fiscal note summary written by State Auditor Scott Fitzpatrick. Rejecting arguments from two lawmakers and an anti-abortion activist, the court said Fitzpatrick’s summary was “fair and sufficient.”
Ashcroft issued a statement that he would appeal the decision to the Missouri Supreme Court, a process likely to take several weeks. The ongoing court battle narrows the time for gathering signatures to put the proposal on the 2024. Backers must secure more than 170,000 signatures from registered voters by early May.
A key error in Ashcroft’s ballot titles, states the opinion signed by Judge Thomas Chapman, was its single-minded focus on how it would impact the legality of abortion. The proposed constitutional amendments, he wrote, cover all aspects of reproductive health care.
“The absence of any reference to a right to reproductive health care beyond abortion in the summary statements is misleading,” Chapman wrote.
There was little to be saved from Ashcroft’s summaries, he wrote.
“The secretary’s summary statements do not fairly describe the purposes and probable effects of the initiatives,” he wrote. “The secretary’s summary statements are replete with politically partisan language.”
Chapman zeroed in on particular phrases as especially troublesome. In the ballot title for each of the six proposals, Ashcroft wrote that passage would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion.”
The phrase “right to life,” like its counterpart in the abortion debate, “right to choose,” is a partisan phrase intended to trigger a particular response, Chapman wrote.
“The use of the term ‘right to life’ is simply not an impartial term,” he wrote.
The same is true for “partial birth abortion,” he wrote, calling it “a politically charged phrase” that “carries no fixed definition.”
The lengthy battle to get ballot titles written began when Anna Fitz-James, a St. Louis physician, filed 11 proposed constitutional amendments with Ashcroft’s office in March on behalf of a political action committee called Missourians for Constitutional Freedom.
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.
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.
Under Missouri law, Ashcroft had up to 56 days to obtain certifications of the form and fiscal note, write a ballot title and certify the petition for circulation.
Attorney General Andrew Bailey tested his authority during that process, refusing to certify the fiscal note summary written by Fitzpatrick until the Missouri Supreme Court ruled in July that his role was limited to determining whether it fit the form required by law.
With legal backing of the ACLU of Missouri, Fitz-James sued Ashcroft over his ballot titles. That led to Beetem’s ruling on Sept. 25 and the subsequent appeal.
In a statement issued Tuesday, the ACLU called the appeals court ruling a complete victory.
“Today, the courts upheld Missourians’ constitutional right to direct democracy over the self-serving attacks of politicians desperately seeking to climb the political ladder,” the statement read. “The decision from Missouri Court of Appeals is a complete rebuke of the combined efforts from the Attorney General and Secretary of State to interfere and deny Missourian’s their right to initiative process.”
Ashcroft said in a statement that Missouri courts “refused to allow the truth to be known. The Western District essentially approved the language that was entirely rewritten by Judge Beetem. Not only is the language misleading but it is categorically false. The circuit court’s opinion admits the real issue is about abortion. The Western District today continued to gloss over the issue in its affirmation. We stand by our language and believe it fairly and accurately reflects the scope and magnitude of each petition.”
Bailey also said in a statement that he disagreed with the decision.
“We remain undeterred in our fight to protect the health and safety of women and children from the radical abortion activists working to turn Missouri into California,” Bailey said.
The appeals court ruling will likely guide litigation over similar language Ashcroft applied to proposals seeking to add rape and incest exceptions to the state’s abortion ban. Those ballot titles, on proposals pitched as a middle ground between the ban currently in place and more expansive rights included in the Fitz-James initiatives, are being challenged in a lawsuit filed last week.
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.”
In its ruling, the court of appeals upheld only one aspect of Ashcroft’s original ballot title – that the proposals would bar the government from discriminating against individuals or organizations that support reproductive rights or provide reproductive services.
The court restored the language, substituting “reproductive services” for “abortion” in Ashcroft’s sentence because “the Secretary’s singular focus on abortion in addressing the nondiscrimination provisions is, as previously noted, misleading.”
In upholding Beetem’s decision to rewrite all the ballot titles, Chapman said he had no choice.
“After removal of the inaccurate and partisan language of the secretary’s summary statements, the circuit court was left with largely unworkable summary statements,” Chapman wrote. “The circuit court was authorized to write alternative language to fulfill its responsibility that a fair and sufficient summary statement be certified.”
In the decision on the fiscal note summary, Judge Alok Ahuja, also writing for an unanimous panel, ruled that Fitzpatrick had accurately summarized the fiscal note. 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 the challenge, arguing that the state could lose federal Medicaid funding and trillions in future tax revenue.
Their briefs cited no authority that showed Medicaid funding was in danger and Fitzpatrick received no information from state agencies that showed it was likely, the court ruled.
On another point, the panel rejected the idea that Fitzpatrick should have used an estimated loss of revenue from Greene County and projected it statewide. The assumptions used by Greene County were dubious, Ahuja wrote, because they are based on a pure revenue-per-person calculation of local tax collections.
Newborns aren’t likely to have the same spending patterns as adults, Ahuja noted.
“Moreover, despite Kelly’s glib contention that extrapolating the Greene County estimate would be a ‘simple’ exercise, she ignores that sales and property tax rates are not uniform state-wide – nor are the value of real and personal property, or the wealth, income and consumption patterns of individuals and businesses,” Ahuja wrote
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A panel of judges will decide whether summaries of the initiative petition should be rewritten
By 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.
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.”