Abortion opponents urge Missouri appeals court judges to change ballot measure summaries

A Missouri appeals court on Monday appeared skeptical of a conservative challenge to how Missouri State Auditor Scott Fitzpatrick described the potential costs of several ballot measures to overturn the state’s abortion ban after the Republican found no anticipated cost to state government.

Judges from the Missouri Court of Appeals Western District also weighed whether to rewrite how the initiative petitions, which would amend the state constitution to add abortion rights, would be summarized on the ballot. They gave fewer hints about how they would rule on that matter, but one judge suggested the summaries should reflect the “sea change” the amendments would mark in state law.

The cases are almost certain to end up before the Missouri Supreme Court, whatever the appeals court decides after separate three-judge panels heard oral arguments in Kansas City. The final decisions over what summaries voters will read in the ballot box – about both what the amendments would do and how much they could cost – will set the stage for a monumental battle over abortion.

Supporters of abortion access have filed several similar initiative petitions, after Missouri became the first state to implement a near-total ban after the U.S. Supreme Court overturned Roe v. Wade last year. If one of the ballot measures pass, Missouri could be the first state since the end of Roe where voters repeal a ban.

Anthony Rothert, director of integrated advocacy at the ACLU of Missouri, said the measures seek to give Missourians “the choice that politicians have failed to” – whether to add to the state constitution the right of individuals to make decisions related to abortions, prenatal care, birth control, postpartum care, child births and miscarriage care.

“Reproductive health care has been under attack for much longer than just the past year, as Missourians know all too well,” Rothert said, nodding to the long history of abortion restrictions by Missouri lawmakers.

Missouri Attorney General Andrew Bailey, a Republican, told reporters the ballot measures would offer the state no role in protecting women and children. Both Bailey and Missouri Secretary of State Jay Ashcroft, a Republican candidate for governor who is an appellant in one case and defendant in another, attended the oral arguments.

“I’m proud to be in this fight to protect women and children in the state of Missouri, to fight back against the radical abortion activists,” said Bailey, who faces a competitive primary in his campaign for election next year after Gov. Mike Parson appointed him in January.

Fitpatrick’s fiscal summary of the measures says state government agencies estimate no costs or savings and that local governments estimated cost of “at least $51,000 annually in reduced tax revenues, but unknown impact.” It also notes opponents estimate a potentially significant loss of revenue.

Abortion opponents say the inclusion of $51,000, based on an estimate provided by Greene County, dramatically undercounts the anticipated costs. They contend the ballot measures could endanger Medicaid funding – Missouri receives about $12.5 billion a year in federal dollars – if Catholic hospitals are cut off from Medicaid reimbursements, for instance. Fitzpatrick’s office has said much of the opponents’ projected costs are speculative.

Three abortion opponents, including two current state legislators, filed a lawsuit challenging the fiscal summary. Cole County Circuit Court Judge Jon Beetem ruled against the opponents last month, leading them to appeal.

Fitzpatrick has previously said that while he has pushed against abortion and will vote against the petitions if they’re on the ballot, his personal stance “cannot compromise the duty my office has to provide a fair assessment of their cost to the state.”

The appeals court judges on Monday appeared inclined to give broad discretion to the state auditor in the development of the fiscal summary, suggesting Fitzpatrick was in a difficult position and they were hesitant to second-guess him.

“How do we go either way on the number that he chose?” Appeals Court Judge Mark Pfeiffer said, referring to Fitzpatrick.

Appeals Court Judge Alok Ahuja said “these are very fraught, very controversial issues” and acknowledged the auditor had noted the estimates of opponents in the summary.

Mary Catherine Martin, an attorney for Thomas More Society, a conservative law firm, told the judges that Fitzpatrick had chosen to mislead in the fiscal summary. She argued that legalized abortion would cost the state far more than $51,000 a year, calling the figure unreasonably small.

“I haven’t heard anyone defend the possibility that opening the door” to legal abortion “could possibly impact the state anywhere close to $51,000,” Martin said.

Robert Tillman, an attorney representing Fitzpatrick, emphasized that the inclusion of “unknown impact” in the fiscal summary provides for the possibility of unforeseen costs. And while Greene County said the measures would have a financial impact, other counties didn’t estimate any impact, Tillman said.

“What may be true for one government entity may be different for another,” he said.

During the ballot summary case, attorneys representing Ashcroft clashed with attorneys from the ACLU of Missouri, who are representing Anna Fitz-James, a retired St. Louis doctor who submitted the proposals in March.

Missouri Solicitor General Josh Divine said the measures would overturn bans on what he called “partial birth” abortions and race-based abortions. His comments echoed Ashcroft’s summaries, which say the ballot measures would “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth” and “nullify longstanding Missouri law protecting the right to life,” among other statements.

“These petitions are sweeping in scope,” Divine said.

Ashcroft told reporters that “if there is inflammatory language, it is because the initiative petition requires it.”

Rothert told the court that Ashcroft chose to push personal and political preferences in how he wrote the summaries, which he called biased. Beetem previously sided with the ACLU, ruling last month that phrases within the summaries were problematic and either argumentative or didn’t fairly describe the proposals.

While not tipping his hand on the overall case, Appeals Court Judge Thomas Chapman appeared to suggest he was open to including something in the summary that would communicate how momentous the change in the law would be, after Rothert acknowledged the reproductive rights guaranteed by the amendments would be broader than under previous law.

“Isn’t that kind of a sea change? Chapman said.

Rothert told reporters afterward that the ballot measures would allow health care professionals to provide medically appropriate care when it comes to abortion or other forms of reproductive health care.

“The way we regulate medicine in Missouri is by leaving it to health care professionals,” Rothert said.