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Proposed amendments legalizing abortion in Missouri again in court over wording and cost

The Cole County Courthouse on Wednesday, Jan. 5, 2022, in Jefferson City.
Brian Munoz
St. Louis Public Radio
Attorneys gathered Monday at the Cole County Courthouse, pictured in January 2022, for two cases involving a set of proposed constitutional amendments seeking to legalize abortion.

In July, Luz María Henríquez, executive director of the ACLU of Missouri, said a continued delay in the advancement of a set of proposed constitutional amendments seeking to legalize abortion had already cost roughly three months of signature gathering.

The initial lawsuit was over the delay in approving a note drafted by State Auditor Scott Fitzpatrick estimating how much he expected any of the amendments to cost the state.

Now, that delay is even longer, in part due to an additional lawsuit over the proposed ballot language by Secretary of State Jay Ashcroft.

The lawsuit, spearheaded by the ACLU of Missouri, had a hearing Monday, with attorneys making their arguments before Cole County Circuit Judge Jon Beetem.

As a part of the initiative petition process, the secretary of state’s office is required to certify the official ballot title, which includes a language summary.

Attorney Anthony Rothert made a series of arguments as to why he believed the language by Ashcroft is misleading and biased against the proposed amendments.

“How the secretary exercised his role is akin to the referee playing for one of the teams,” Rothert said.

On the ballot language, Rothert said by focusing only on abortion, the summary language is insufficient since the proposal addresses other aspects of reproductive health too, including contraception and postpartum care.

Rothert also brought up several examples of words or phrases Ashcroft used in the ballot summary to point toward a bias against the amendments such as “dangerous” and “right to life.”

He said that while a more accurate ballot proposal would use the term “safe abortion,” the ACLU is looking for language that doesn’t say abortion is dangerous.

Rothert also spoke against the ballot language implying that taxpayer dollars could be used toward abortion in the state. He said that language is disingenuous, especially since a couple of the petitions explicitly say they do not use taxpayer money.

Assistant Attorney General Jason Lewis defended the language in court, saying the proposed summaries by the proponents “hide the ball” over what those amendments would do.

Lewis also said Ashcroft’s summary, unlike the ones submitted by proponents, “explain what the probable effects are of the proposals.”

On the language, Lewis said he believes that the term dangerous “speaks for itself” and that it is not pejorative or biased.

Additionally, Lewis pushed back on the criticism of the taxpayer language.

“We think it is clear these petitions do allow for the potential of government funding,” Lewis said.

Any decision by Beetem is likely to be appealed.

Fiscal note in court again

In addition to a lawsuit over the ballot language, the fiscal note estimating how much the amendments would cost Missouri is again the subject of a lawsuit.

Beetem also heard arguments for that lawsuit on Monday, with hearings for both cases occurring back to back.

This time, Fitzpatrick’s work is not being challenged by the attorney general, but by two Republican state lawmakers, Rep Hannah Kelly, R-Mountain Grove, and Sen. Mary Elizabeth Coleman, R-Arnold, and an anti-abortion rights activist.

Mary Catherine Hodes, lawyer for the plaintiffs, argued against Fitzpatrick’s estimate on multiple fronts, including that the auditor ignored claims by opponents that showed a greater loss of revenue than Fitzpatrick predicted.

“We’re here to argue that it’s both insufficient and unfair,” Hodes said.

Hodes said the stated cost for local government entities, which right now is estimated at $51,000 for Greene County, for example, was too low and recommended it be amended to state that millions of dollars annually could be at risk.

Another issue Hodes raised is the plaintiffs’ belief that the fiscal note is inadequate because it does not consider the possibility of losing billions in federal Medicaid funding.

Robert Tillman, attorney for Fitzpatrick, disagreed.

On the possibility of losing Medicaid funding, Tillman said based on Fitzpatrick's experience in state government, including the budget and his knowledge of state and federal law, the auditor does not believe that Medicaid funding is in jeopardy as a result of the proposed amendments.

Tillman also said when given the chance to revise its estimate on how the amendment would affect the state, the Department of Social Services, which oversees Medicaid, did not change its position of not seeing a fiscal impact.

In addition, Tillman said it would be inappropriate for the auditor to expand on the stated cost for local government entities, since Greene County is not indicative of the entire state.

“The auditor’s fiscal note summary is fair and sufficient,” Tillman said.

Beetem did not indicate when he would rule on either lawsuit. He has said previously that he would decide as quickly as possible.

Sarah Kellogg is a Missouri Statehouse and Politics Reporter for St. Louis Public Radio and other public radio stations across the state.