KANSAS CITY, Mo. – Attorneys for the state of Missouri were back in court Monday to fight against efforts to allow proposed initiative petitions on the ballot next November to make abortion legal again.
After a circuit court judge rewrote what he called “problematic” language last month, the state appealed the ruling, sending the case to the Western District Court of Appeals in Kansas City.
“The trial court strayed from its legitimate role when it decided to rewrite every single word of every single statement,” Deputy Attorney General Josh Divine told the three-judge panel. “Trial courts can only modify the language, not rewrite it entirely. Here, the trial court violated all those rules and instead of taking a scalpel, took a butcher knife to the language.”
It’s been a constant court battle over initiative petitions asking voters if abortion rights should be restored.
Supporters of the referendum accuse Ashcroft of writing misleading ballot summary language, which is why the American Civil Liberties Union (ACLU) of Missouri filed the lawsuit, leading a Cole County judge in Jefferson City to write the summaries himself.
In the ballot summary the ACLU is calling misleading, Ashcroft asks voters whether to “allow for dangerous, unregulated and unrestricted abortions, from contraception to live birth, without requiring a medical license or potentially being subject to medical malpractice.” His summary would also ask voters to “nullify longstanding Missouri law, protecting the right to life, including but not limited to partial-birth abortion.”
“Reproductive healthcare has been under attack much longer than just the past year, as Missourians know all too well,” Tony Rothert, legal director for the ACLU, said. “Here the Secretary of State concocted a summary statement that is filled with bombastic, argumentative, hyperbolic language that mistakes the purpose of initiatives.”
Cold County Judge Jon Beetem ruled last month that Ashcroft’s versions “are problematic in that they are argumentative or do not fairly describe the purposes or probable effect of the initiative.”
The state argued Monday, Ashcroft accurately portrayed the impact this referendum would have.
“Under these petitions, every abortion becomes a back-alley abortion,” Divine said. “It was well within the secretary’s discretion to describe these petitions as permitting dangerous, unrestricted and unregulated abortions.”
Back in March, 11 petitions were filed with the Secretary of State’s office by Dr. Anna Fitz-James to roll back Missouri’s ban on abortion by adding protections to the constitution. Supporters want to ask voters to establish the right to reproductive freedom.
Both Ashcroft and Attorney General Andrew Bailey sat together at Monday’s hearing and spoke to reporters outside the courthouse afterward.
“The petitioners are hiding the ball,” Bailey said. “They are not being truthful with the voting public and the language that is being used in the secretary’s summary come directly from Missouri law.”
Ashcroft said he put his personal views aside when writing the language.
“If there is inflammatory language, it is because the initiative petition requires it,” Ashcroft said.
In order to make the November 2024 ballot, supporters must gather more than 170,000 signatures from voters. The ACLU is blaming the state for holding up the process.
“We should have had one [ballot summary] by May 1 and should have been able to start collecting signatures then and here we are, in the cold weather, still fighting for a fair summary statement,” Rothert said. “Whether or not there will be enough time will depend on the people of Missouri.”
Ashcroft responded by saying it’s not his fault that supporters are being held up by the judicial process.
“My office did not bring a lawsuit here, my office was sued by individuals that decided to not collect signatures and instead try to pad the language to help them pass it,” Ashcroft said. “We have not delayed them at all. We did not start the litigation; we did not delay them.”
Another court challenge surrounding the referendums is what the financial impact would be on state and local governments. Republican State Auditor Scott Fitzpatrick estimates that if abortion becomes legal again, it will cost roughly $51,000 for local governments. While the state would not lose its federal Medicaid funding, the impact on state agencies was undetermined.
Earlier this summer, the Missouri Supreme Court heard arguments regarding the fiscal note saying Attorney General Andrew Bailey had no authority to question the contents of Fitzpatrick’s fiscal note summary, giving Bailey 24 hours to certify the fiscal analysis.
After that case in July, Rep. Hannah Kelly, R-Moutain Grove, Sen. Mary Elizabeth Coleman, R-Arnold and longtime anti-abortion advocate from central Missouri Kathy Forck, filed a lawsuit challenging the fiscal note summary, saying the state would lose Medicaid funding and billions in tax revenue.
“It raises many more questions than it answers, and it fails to inform voters,” an attorney for Kelly, Coleman, and Forck told the panel of judges. “Changing the regulatory scheme to that degree, changing the healthcare system, changing the tax base, losing future citizens could not possibly impact the state anywhere close to the amount of $51,000. That’s the cost of a 2024 Tahoe. It is the cost of a mid-sized SUV, not the cost of unfunded access to abortion in a state where abortion is 100% restricted.”
Fitzpatrick’s lawyer, Robert Tillman, said if there were costs and savings, they would have been included in the fiscal note.
Attorneys said it’s likely the three-judge panel will rule sometime this week, but it’s expected that no matter the decision, there will be another appeal, sending the case to the Missouri Supreme Court.