A Cole County judge promised Thursday he would rule quickly after a Sept. 11 trial over the language voters will see when they consider an initiative petition to reinstate the right to an abortion.
At a hearing on challenges to the ballot titles written for six proposed petitions, Circuit Judge Jon Beetem told attorneys that he knows whatever he decides will be appealed. And after a recently resolved dispute between State Auditor Scott Fitzpatrick and Attorney General Andrew Bailey delayed other action on the petitions for more than 100 days, time is short for the collection of roughly 170,000 signatures needed to make the 2024 ballot.
Beetem asked ACLU of Missouri attorney Tony Rothert and Assistant Attorney General Jason Lewis to have proposed findings ready for him at the trial on Sept. 11 so he can quickly render a judgment.
“My goal is to get something pumped down pretty quick so you can go wherever you want to go next, depending on who’s unhappy,” Beetem said.
In early March, Anna Fitz-James, a St. Louis doctor, filed 11 versions of a proposed constitutional amendment 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.
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Missouri Attorney General Andrew Bailey looks on as Gabriel Gore introduces himself after being named St. Louis Circuit Attorney in May during a press conference at the Mel Carnahan Courthouse in downtown St. Louis. Bailey refused to approve State Auditor Scott Fitzpatrick’s fiscal summary of an abortion access ballot petition, delaying a 56-day process to almost 150 days.
Before supporters could collect signatures, they had to wait for Secretary of State Jay Ashcroft to write a description of the proposal and for Fitzpatrick to write a fiscal summary. That process, which by law can take up to 56 days, was stretched out to almost 150 days because Bailey, who has responsibility to certify that the description and fiscal summary meet legal requirements, refused to accept Fitzpatrick’s work.
The Missouri Supreme Court finally resolved the issue on July 20, ruling that Bailey had exceeded his authority by questioning the content of Fitzpatrick’s analysis.
The case currently pending is over Ashcroft’s description of the proposals. There are differences among them and Ashcroft has language that varies depending on the details.
Each version of the proposed amendment says there must be a “compelling governmental interest” for abortion restrictions to be put in place. And each summary has identical language on that issue – how the proposal impacts abortion rights.
Ashcroft wrote that the proposals would “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice” and that they would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion.”
When Ashcroft certified the language, it opened a 10-day window for challenges to his description. The ACLU of Missouri filed challenges over six versions and asked Beetem to consolidate the cases.
The ACLU argues that Ashcroft “disregarded his duty to craft a sufficient and fair summary statement and instead certified one that is argumentative against adoption of the initiative, is misleading as to the initiative’s probable effects, and prejudicial to initiative.”
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Secretary of State Jay Ashcroft speaks in favor of bills that would, in part, ban the teaching of “critical race theory” in schools in January during an Education and Workforce Development Committee hearing at the Missouri State Capitol in Jefferson City. The ACLU of Missouri filed challenges over Ashcroft’s description of proposals that would codify abortion access into the Missouri constitution.
During the hearing, Rothert asked for a quick schedule, telling Beetem that he could be ready for arguments within two weeks. Lewis asked for more time, noting that state law gives the courts 180 days to complete the judicial review of ballot language.
Lewis also said the outcome of a 2019 Missouri Supreme Court case means the petitioners can begin gathering signatures before the ballot language is finalized.
“This is not the kind of case where anyone is up against the gun or the opponent is prevented from doing anything right now,” Lewis said.
In that 2019 case, opponents of the law that currently bans abortions in Missouri tried to force a referendum on the bill immediately after the legislative session that passed it. The Missouri Constitution allows citizens to force a statewide vote on legislation by collecting signatures equal to 5% of the vote in the most recent election for governor within 90 days of the end of a legislative session.
Before the ruling, signature gathering for a referendum could not begin until after the secretary of state wrote a ballot summary. The court ruled that the law requiring a review and ballot title improperly “‘interfere with and impede’ the right of referendum because they give the legislature the power to make any referendum effort untenable.”
In the Thursday hearing, however, Rothert said Lewis’ view, that the 2019 ruling applies to initiatives proposing new laws or constitutional amendments, isn’t as clear to him. And, he said, an additional delay that uses the entire 180 days allowed by law would make signature gathering impossible.
If no signatures were collected before a case taking that long, proponents would have from late January to early May to collect the signatures, which must equal 8% of the vote for governor in six of the state’s eight congressional districts.
“Proponents are in a position of not knowing which petition to collect signatures on without some guidance as to what it’s going to be,” Rothert said. “Certainly, if this case took 180 days to resolve, that would kill the initiative as a pragmatic matter.”
Additional challenges could complicate the litigation. The deadline is Monday, and Lewis told Beetem that he expects an “interested group” to file a challenge to the fiscal summary before the deadline expires on Monday.
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Scott Fitzpatrick is sworn in as the next state auditor by Jack Goodman, Chief Judge of Missouri Court of Appeals for the Southern District in January at the Missouri State Capitol in Jefferson City. Fitzpatrick and Attorney General Andrew Bailey clashed because Bailey wanted a fiscal summary that stated, in part, Missouri could be dropped from the federal Medicaid program if it legalizes abortions.
Fitzpatrick and Bailey clashed because Bailey wanted a fiscal summary that stated Missouri could be dropped from the federal Medicaid program if it legalizes abortions and that the future revenue loss for residents who did not pay taxes because they did not exist would be trillions of dollars.
The fiscal note Fitzpatrick wrote, and is currently part of the ballot title, is that state agencies anticipate an uncertain impact, local governments could lose up to $51,000 of future revenue and that opponents estimate the loss is larger.
Beetem, however, said he wants the case over Ashcroft’s language to move ahead and will consider whether to consolidate it with any case involving the fiscal note. A fiscal note case is more complicated, he noted, because the parties must back their estimates with evidence while the case over Ashcroft’s language is about fair phrasing.
“I agree that we’ve got a few more days for somebody else to file it,” Beetem said, referring to a fiscal note challenge. “Frankly, I expect somebody to file just given how we got here. But I don’t know that those two cases necessarily can be done at the same time just because I think this is all about the words.”
This story was originally published by the Missouri Independent, part of the States Newsroom.