Appeals court swats down Ashcroft arguments on Missouri abortion rights petitions

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Missouri Attorney General Andrew Bailey speaks to reporters Monday outside the Western District Court of Appeals building in Kansas City while Secretary of State Jay Ashcroft waits for his turn the microphones. Bailey and Ashcroft had just attended arguments over the abortion initiative ballot titles rewritten by a Cole County judge. | Rudi Keller/Missouri Independent

Secretary of State Jay Ashcroft wrote ballot titles for six proposals to restore abortion rights that were “replete with politically partisan language,” a Missouri appeals court unanimously ruled Tuesday.

In an expedited decision issued a day after hearing arguments, a three-judge panel of the Western District Court of Appeals upheld, with only minor revisions, the revised ballot titles written by Cole County Circuit Judge Jon Beetem.

In a decision by a separate panel, the court upheld the fiscal note summary written by State Auditor Scott Fitzpatrick. Rejecting arguments from two lawmakers and an anti-abortion activist, the court said Fitzpatrick’s summary was “fair and sufficient.”

Ashcroft issued a statement that he would appeal the decision to the Missouri Supreme Court, a process likely to take several weeks. The ongoing court battle narrows the time for gathering signatures to put the proposal on the 2024. Backers must secure more than 170,000 signatures from registered voters by early May.

A key error in Ashcroft’s ballot titles, states the opinion signed by Judge Thomas Chapman, was its single-minded focus on how it would impact the legality of abortion. The proposed constitutional amendments, he wrote, cover all aspects of reproductive health care.

“The absence of any reference to a right to reproductive health care beyond abortion in the summary statements is misleading,” Chapman wrote.

There was little to be saved from Ashcroft’s summaries, he wrote.

“The secretary’s summary statements do not fairly describe the purposes and probable effects of the initiatives,” he wrote. “The secretary’s summary statements are replete with politically partisan language.”

Chapman zeroed in on particular phrases as especially troublesome. In the ballot title for each of the six proposals, Ashcroft wrote that passage would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion.”

The phrase “right to life,” like its counterpart in the abortion debate, “right to choose,” is a partisan phrase intended to trigger a particular response, Chapman wrote.

“The use of the term ‘right to life’ is simply not an impartial term,” he wrote.

The same is true for “partial birth abortion,” he wrote, calling it “a politically charged phrase” that “carries no fixed definition.”

The lengthy battle to get ballot titles written began when Anna Fitz-James, a St. Louis physician, filed 11 proposed constitutional amendments with Ashcroft’s office in March on behalf of a political action committee called Missourians for Constitutional Freedom.

The proposals would amend the constitution to declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.” 

That would include “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.” Penalties for both patients seeking reproductive-related care and medical providers would be outlawed.

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. 

Under Missouri law, Ashcroft had up to 56 days to obtain certifications of the form and fiscal note, write a ballot title and certify the petition for circulation.

Attorney General Andrew Bailey tested his authority during that process, refusing to certify the fiscal note summary written by Fitzpatrick until the Missouri Supreme Court ruled in July that his role was limited to determining whether it fit the form required by law.

With legal backing of the ACLU of Missouri, Fitz-James sued Ashcroft over his ballot titles. That led to Beetem’s ruling on Sept. 25 and the subsequent appeal.

In a statement issued Tuesday, the ACLU called the appeals court ruling a complete victory.

“Today, the courts upheld Missourians’ constitutional right to direct democracy over the self-serving attacks of politicians desperately seeking to climb the political ladder,” the statement read. “The decision from Missouri Court of Appeals is a complete rebuke of the combined efforts from the Attorney General and Secretary of State to interfere and deny Missourian’s their right to initiative process.”

Ashcroft said in a statement that Missouri courts “refused to allow the truth to be known. The Western District essentially approved the language that was entirely rewritten by Judge Beetem. Not only is the language misleading but it is categorically false. The circuit court’s opinion admits the real issue is about abortion. The Western District today continued to gloss over the issue in its affirmation. We stand by our language and believe it fairly and accurately reflects the scope and magnitude of each petition.”

Bailey also said in a statement that he disagreed with the decision.

“We remain undeterred in our fight to protect the health and safety of women and children from the radical abortion activists working to turn Missouri into California,” Bailey said.

The appeals court ruling will likely guide litigation over similar language Ashcroft applied to proposals seeking to add rape and incest exceptions to the state’s abortion ban. Those ballot titles, on proposals pitched as a middle ground between the ban currently in place and more expansive rights included in the Fitz-James initiatives, are being challenged in a lawsuit filed last week

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.”

In its ruling, the court of appeals upheld only one aspect of Ashcroft’s original ballot title – that the proposals would bar the government from discriminating against individuals or organizations that support reproductive rights or provide reproductive services.

The court restored the language, substituting “reproductive services” for “abortion” in Ashcroft’s sentence because “the Secretary’s singular focus on abortion in addressing the nondiscrimination provisions is, as previously noted, misleading.”

In upholding Beetem’s decision to rewrite all the ballot titles, Chapman said he had no choice. 

“After removal of the inaccurate and partisan language of the secretary’s summary statements, the circuit court was left with largely unworkable summary statements,” Chapman wrote. “The circuit court was authorized to write alternative language to fulfill its responsibility that a fair and sufficient summary statement be certified.”

In the decision on the fiscal note summary, Judge Alok Ahuja, also writing for an unanimous panel, ruled that Fitzpatrick had accurately summarized the fiscal note. 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, filed the challenge, arguing that the state could lose federal Medicaid funding and trillions in future tax revenue.

Their briefs cited no authority that showed Medicaid funding was in danger and Fitzpatrick received no information from state agencies that showed it was likely, the court ruled.

On another point, the panel rejected the idea that Fitzpatrick should have used an estimated loss of revenue from Greene County and projected it statewide. The assumptions used by Greene County were dubious, Ahuja wrote, because they are based on a pure revenue-per-person calculation of local tax collections.

Newborns aren’t likely to have the same spending patterns as adults, Ahuja noted.

“Moreover, despite Kelly’s glib contention that extrapolating the Greene County estimate would be a ‘simple’ exercise, she ignores that sales and property tax rates are not uniform state-wide – nor are the value of real and personal property, or the wealth, income and consumption patterns of individuals and businesses,” Ahuja wrote.

In a statement, Fitzpatrick said he was gratified that his work had been upheld again.

“I oppose these measures and wholeheartedly agree with the other opponents that protecting innocent life is vitally important,” Fitzpatrick said, “but that does not and cannot influence my duty to honestly inform the voters of the state as to their potential costs.”

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