Missouri judge rejects Secretary of State's 'problematic' language for abortion ballot issues

A Cole County judge rewrote the ballot titles for six initiative petitions seeking to enshrine the right to abortion in the Missouri Constitution, ruling that 13 phrases in the summaries written by Secretary of State Jay Ashcroft are “argumentative” or unfairly biased.

In a ruling issued Monday morning, Circuit Judge Jon Beetem wrote that the summaries crafted by Ashcroft completely ignored the initiative proposals’ protections for contraceptives and other reproductive health needs.

In a separate decision, Beetem upheld the fiscal note summary written by state Auditor Scott Fitzpatrick, rejecting claims by two state lawmakers and an anti-abortion activist that passage would impose enormous costs not reflected in the summary.

Beetem’s ruling comes two weeks after he heard arguments from ACLU of Missouri attorneys representing Dr. Anna Fitz-James, the physician who is the named sponsor of the initiatives, challenging Ashcroft’s ballot titles.

“The court finds 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,” Beetem wrote.

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.”

Representing a political action committee called Missourians for Constitutional Freedom, Fitz-James filed 11 versions of the proposal with Ashcroft’s office in March. There has already been one lengthy court case over the initiatives, with the Missouri Supreme Court ruling in July that Attorney General Andrew Bailey had no authority to question the contents of Fitzpatrick’s fiscal note summary.

This new round of litigation, expected to also end with appellate review, has delayed the final decision on which of the initiatives to circulate. To make the 2024 ballot, backers must secure more than 170,000 signatures from registered voters by early May.

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.”

Beetem wrote that he also found “that while the proposals have the greatest immediate impact on abortion, the absence of any reference to reproductive health care beyond is insufficient in that it would cause a voter to believe that abortion is the only health care comprising the initiatives.”

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.

Beetem rewrote each of six ballot summaries, making them different based on the contents.

The first sentence of each is identical, asking Missouri voters if they want to “establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any government interference of that right presumed invalid.”

“The court saw Ashcroft’s proposed summary statements for what they were — the language of a biased politician seeking the support of special interest groups,” said Anthony Rothert, director of integrated advocacy at the ACLU of Missouri, which represented the plaintiff in the case.

In his ruling on the challenge to the fiscal note summary, Beetem wrote that Fitzpatrick was under no obligation to do an independent analysis of the potential costs. Filed by 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, the challengers argued that the state could lose federal Medicaid funding and trillions in future tax revenue.

Beetem noted that in another case from 2020, the same parties had argued that banning abortion would cost Missouri its Medicaid funding.

“Petitioners have thus argued that both banning and legalizing abortion would each result in a 100% disallowance of the state’s federal Medicaid funding,” Beetem wrote. “That argument is untenable, and the record tends to show neither scenario has resulted in a disallowance of federal Medicaid funding, in any amount.”

Fitzpatrick’s summaries are sufficient, he wrote.

“The auditor’s fiscal note summaries do not have to express an exact dollar figure,” Beetem wrote, “especially when one cannot be calculated with any degree of certainty.”

This story was originally published by the Missouri Independent.