Attorneys representing Missouri Secretary of State Jay Ashcroft argued Monday that a Cole County circuit judge overstepped his bounds when rewriting an abortion rights ballot summary.
Ashcroft is appealing a decision by Judge John Beetem finding that Ashcroft's language describing six proposed amendments was biased and unfair. The ballot language would limit the ability of the Missouri Legislature — a strongly anti-abortion body — to enact restrictions in place before abortions became illegal statewide in 2022.
The original summary described the proposed constitutional amendments as allowing “dangerous and unregulated abortions until live birth.” Last month, Beetem rewrote the summary as “establishing a right to make decisions about reproductive health care” and undoing the near-total ban on abortion.
Solicitor General Josh Divine, representing Ashcroft, argued that the Missouri Court of Appeals should restore the original wording.
“The trial court strayed far from its legitimate role when it decided to rewrite every single word of every single statement,” Divine said.
Divine argued that anti-discrimination provisions in Missouri law barring a woman from terminating a pregnancy based on sex and race would be unenforceable. Ashcroft’s summary also suggested the state would not be allowed to discriminate against abortion providers in other programs, for example in doling out appropriations for prenatal care.
But Tony Rothert, legal director of the ACLU of Missouri, said that remains a matter of speculation.
The ACLU sued Ashcroft on behalf of Anna Fitz-James, a St. Louis physician, who filed the proposed ballot measures with the secretary of state’s office in March. Rothert and the ACLU maintain Ashcroft violated his duty to write impartial language that merely summarizes the initiative.
“The Secretary of State concocted a summary statement that's filled with bombastic, argumentative, hyperbolistic language that misstates the purpose of the initiatives,” Rothert said. “Voters are entitled to a corrected summary statement."
The ACLU is asking the appellate court to uphold Beetem’s ruling.
Standing outside the court after the hearing, Ashcroft countered: “If that is inferred as argumentative language, it is because the initiative petition required it."
Financial impact
In addition to the wording of the summary, attorneys debated the responsibilities of State Auditor Scott Fitzpatrick.
Along with the summary, the initiatives carry a fiscal note measuring how much the proposed changes could cost state taxpayers. When Missouri Attorney General Andrew Bailey declined to certify the note written by Fitzpatrick, the estimate became the subject of litigation.
Bailey and fellow Republicans argued the estimated cost of the changes ought to be raised, but Fitzpatrick argued he was simply doing his job. When the Missouri Supreme Court blocked Bailey’s efforts to resist certification, a trio of Republican legislators filed a legal challenge.
“I think it raises more questions than it answers and therefore fails to advise voters,” said Mary Catherine Martin, an attorney representing State Rep. Hannah Kelly, R-Mountain Grove, state Sen. Mary Elizabeth Coleman, R-Arnold, and Kathy Forck, an anti-abortion advocate.
The three argued that the state could lose federal Medicaid funding and billions in future tax revenue.
“If there are costs and savings, they would have been included in the fiscal note summary,” said Robert Tillman, representing Fitzpatrick.
The court could rule soon, possibly within the week, because timeliness is of the essence. The review process to produce a ballot summary and financial estimate should take just 56 days to complete. But with the several legal challenges of the summary, supporters have less time to secure the more than 170,000 signatures needed by early 2024.
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