KANSAS CITY, Mo. — The Western District Court of Appeals on Monday heard arguments about the ballot language for proposed abortion initiatives to the Missouri Constitution.
At issue are the summaries of six ballot measures written by Missouri Secretary of State John Ashcroft.
Under state law, the 100-word summaries must use neutral language that is "neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure."
But Cole County Circuit Judge Jon Beetem ruled in September that 13 phrases in Ashcroft's ballot summaries were biased because they included such statements that the initiatives would allow "dangerous, unregulated, and unrestricted abortions” and that abortions would be allowed "from conception to live birth."
Beetem rewrote each of the six ballot summaries when he made his ruling, including the first sentence that asks 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.”
Ashcroft, who attended Monday’s hearing but did not address the court, appealed Beetem’s ruling. He argued the lower court judge exceeded his authority and failed to explain his rationale for re-writing the ballot summaries.
Joshua Divine, solicitor general for Missouri, echoed those arguments on Monday. He told the panel of three judges that Ashcroft’s language came from Missouri statutes, including the words “right to life” and “partial-birth abortions.”
He also said the ballot initiatives would allow for "back-alley" abortions in the state.
Divine told the court that Beetem could modify Ashcroft’s language, but, in this case, said the judge used a butcher knife instead of a scalpel on the ballot summaries.
Attorneys for the ACLU on Monday argued that Ashcroft chose to push his personal and political preferences when he wrote the descriptions of the ballot initiatives.
The ACLU represents St. Louis physician Anna Fitz-James, who challenged Ashcroft’s ballot titles and summaries. She was not present during Monday’s hearing.
Beetem’s decision in September came two weeks after he heard arguments from the ACLU.
In previous court filings, the ACLU asked the court of appeal to uphold Beetem’s decision. “Rather than providing non-argumentative, non-prejudicial, non-biased summary statements, the Secretary takes a side in the debate and saturates the statements with moral frames favoring his opinion,” ACLU attorney Tony Rothert wrote. “Voters are entitled to a summary statement that is not argumentative.”
After the hearing, Rothert called the language Ashcroft used in the ballot summaries “bombastic” and denied Divine’s claim that the proposed measures would allow for back-alley abortions.
"Voters are entitled to a corrected summary statement. (It's) a task the Secretary left to the trial court and left to this court, by abdicating his duty," Rothert told a group of reporters in a press conference Monday.
Rothert said he expects the court of appeal to make a decision in days, likely this week.
In a separate press conference on Monday, Ashcroft and Attorney General Andrew Bailey defended the ballot summaries.
“My office’s job with regard to the initiative petitions is to tell the truth,” Ashcroft said. “If there is inflammatory language it is because the initiative petition requires it. We do not just make up language out of whole cloth. We do what the circuit court refused to do. We go to the language of the initiative petition and we summarized that so the people of this state can make their own decision.”
Ashcroft said he normally doesn’t participate in court of appeal hearings, but came Monday because “of the egregious abdication of responsibility to the people of the state that was shown by the circuit court in the prior case.”
Abortions became illegal in Missouri in June 2022 after the U.S. Supreme Court overturned the landmark Roe v. Wade decision recognizing the right to an abortion. The only exception was for emergency abortions to save a mother's life or when there is “a serious risk of substantial and irreversible physical impairment of a major bodily function.”
Supporters of the abortion rights initiatives in Missouri must gather more than 170,000 signatures from registered voters by early May to get the measures on the 2024 ballot. But Monday's hearing was the second round of litigation in this case and, according to proponents of the measures, has delayed gathering signatures for the ballot initiatives by seven months.
"We should have had (a summary statement) by May 1st. Should have been able to begin collecting signatures then, and here we are in the cold weather still fighting for a fair summary statement," Rothert said.
Ashcroft denied that claim.
“As a legal matter, it does not stop them from gathering signatures,” he said during Monday’s press conference in Kansas City. “The people that were behind this could have been collecting signatures. Frankly, they chose not to collect signatures because they wanted to mislead the people of this state about what they were doing.”
Bailey defended Ashcroft’s ballot summaries, saying: “The language that’s being used in the secretary’s summaries came directly from Missouri law and Missouri case. Thus it is fair and accurate.”
The elected state leaders didn't rule out filing an appeal if the court of appeals upholds Judge Beetem’s ruling.
“If there is language that comes out of this decision that we think is misleading to the people then we will, of course, appeal it,” Ashcroft said.
Missouri voters will likely decide next November if Ashcroft becomes the state's next governor. The Republican who opposes abortion is expected to be the GOP nominee.
In a separate hearing on Monday, three different court of appeal judges heard challenges to Beetem's ruling that upheld the financial summary about the ballot initiatives.
Beetem’s ruling rejected claims from two state lawmakers and an anti-abortion activist that the initiative would add enormous costs not reflected in the summary written by Missouri State Auditor Scott Fitzpatrick.
Challengers argued the state could lose federal Medicaid and millions or more in future tax revenue.
But attorneys representing Fitzpatrick and the other respondents in the case said the opposition failed to show any flaws or errors in the auditor’s 50-word fiscal summary.
In his September decision, Beetem ruled that Fitzpatrick’s financial summaries do not have to express an exact dollar figure “especially when one cannot be calculated with any degree of certainty.”
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