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Missouri Supreme Court rejects attorney general's push to inflate cost of abortion rights amendment

Andrew Bailey, newly appointed Missouri Attorney General, speaks to the media on Tuesday, Jan. 3, 2023, after being sworn in as the state’s 44th attorney general at the Missouri Supreme Court in Jefferson City.
Brian Munoz
St. Louis Public Radio
Andrew Bailey, newly appointed Missouri Attorney General, speaks to the media on Tuesday, Jan. 3, 2023, after being sworn in as the state’s 44th attorney general at the Missouri Supreme Court in Jefferson City.

Missouri Attorney General Andrew Bailey’s efforts to inflate the cost of an abortion-rights initiative petition were unanimously rejected by the state Supreme Court Thursday, just two days after judges heard arguments in the case.

The quick verdict, which was written by Judge Paul Wilson, was scathing in its assessment of Bailey’s refusal to sign off on the work of Auditor Scott Fitzpatrick, concluding that nothing in state law “gives the attorney general authority to question the auditor’s assessment of the fiscal impact of a proposed petition.”

The ruling upheld Cole County Circuit Court Judge Jon Beetem’s ruling last month ordering Bailey to sign off on Fitzpatrick’s fiscal summary within 24 hours.

A spokeswoman for the attorney general’s office said Bailey disagrees with the court’s decision, “as we believe Missourians deserve to know how much this amendment would cost the state, but we will respect the court’s order.”

In early March, 11 versions of a proposed constitutional amendment rolling back Missouri’s abortion ban were filed with the secretary of state’s office.

As part of the initiative petition process, the state auditor is required to create a fiscal note and a fiscal note summary that states “the measure’s estimated cost or savings, if any, to state or local governmental entities.”

After consulting 60 state and local agencies, including the attorney general’s office, Fitzpatrick concluded the state would face “no costs or savings” as a result of the proposed constitutional amendment.

Bailey refused to give what has traditionally been considered perfunctory approval of the fiscal note. Instead, he demanded the auditor increase the estimate to say the amendment would cost the state billions of dollars.

Fitzpatrick said that while he vehemently opposes the proposed initiative petition, the projected cost estimate being pushed by Bailey is not based in reality. To alter his fiscal summary to include Bailey’s “inaccurate information.” Fitzpatrick wrote to the attorney general, would “violate my duty as State Auditor to produce an accurate fiscal note summary.

Because of the impasse, Secretary of State Jay Ashcroft has not completed his work on the summary, and thus, supporters cannot legally begin collecting signatures to place the issue on the ballot.

Thursday’s Supreme Court ruling acknowledged how Bailey’s unlawful refusal to sign off on the fiscal note has derailed the initiative petition process.

“The attorney general was to have performed that task within 10 days of receiving the fiscal notes and summaries from the auditor, a period that expired more than three months ago,” Wilson wrote in his ruling, later adding: “Because of this logjam, the (secretary of state) could not — and, to this day, cannot — complete his duty by certifying the official ballot titles for the proposed petitions.”

If the attorney general had “complied with his duty to approve the Auditor’s fiscal note summaries,” Wilson wrote, the official ballot summary would have been finalized “nearly 100 days ago.”

Luz María Henríquez, executive director of the ACLU of Missouri, which sued the attorney general over the fiscal note delays, said Tuesday that the attorney general was seeking to single-handedly upend the initiative petition process.

His efforts, Henríquez said, are “more consistent with the tendencies of an authoritarian government than what we would expect to find in a thriving democracy.”

In an interview Tuesday with KMOX-TV, Bailey was asked whether it’s morally acceptable to disregard parts of the constitution or break the law as a means of preventing an abortion from taking place.

“I’m going to need to spend a little more time thinking through that kind of philosophical, moral question,” Bailey said.

This story was originally published by the Missouri Independent.

Jason Hancock is a reporter covering politics and policy for The Missouri Independent.