Missouri AG trying to undermine abortion rights ballot measure, ACLU alleges in lawsuit

Missouri Attorney General Andrew Bailey wants a ballot summary for a proposed constitutional amendment overturning the state’s abortion ban to include sensationalized estimates of financial damage that another statewide Republican official calls inaccurate.

Bailey has rejected a fiscal note of the measure from Missouri Auditor Scott Fitzpatrick, saying it should include a potential loss of $12.5 billion in Medicaid dollars — a doomsday scenario pushed by anti-abortion groups that Fitzpatrick has flatly said won’t happen.

The standoff between the two GOP officials has delayed Missouri in finalizing the initiative petition, preventing supporters from gathering signatures, an arduous and a time-intensive process.

The ACLU of Missouri on Thursday sued to force Bailey, Fitzpatrick and Missouri Secretary of State Jay Ashcroft to finish the process. It is accusing Bailey of attempting to coerce Fitzpatrick into submitting a fiscal note with inaccurate information.

Bailey, who took office in January after his appointment by Gov. Mike Parson, and Ashcroft are both running in competitive Republican primaries next year.

Ashcroft, who is running for governor, has proposed incendiary ballot summary language for the amendment, according to documents obtained by The Star through a records request. His summary says the amendment would allow “dangerous, unregulated” abortions.

The Missouri Independent first reported on the documents Thursday.

How successful Bailey and Ashcroft are successful in shaping the description of the amendment could ultimately prove pivotal to whether supporters of abortion rights can restore access to the procedure. A near-total ban went into effect immediately after the U.S. Supreme Court overturned Roe v. Wade in June.

With the Missouri General Assembly under the control of Republican supermajorities, the only realistic path to again legalize abortion is through a statewide vote.

“The unilateral actions of the unelected Attorney General to hold hostage the people’s constitutional right to the initiative process is an attempt to subvert direct democracy to prevent Missourians from voting on the fundamental right to reproductive freedom,” Anthony Rothert, director of integrated advocacy at the ACLU of Missouri, said in a statement.

Anna Fitz-James, a retired St. Louis doctor, in early March submitted 11 versions of a state constitutional amendment that would restore abortion rights to Ashcroft’s office. Some of the proposals are more aggressive than others, with one allowing lawmakers to regulate abortion after the point of fetal viability and another only allowing regulations for the limited purpose of maintaining or improving the health of the person seeking care.

“The focus here should be on the out-of-state money working to usurp the legislative process in order to endanger the lives of the unborn that are currently protected in the state of Missouri,” Bailey spokesperson Madeline Sieren said in a statement.

“We will continue to use every tool at our disposal to defend the sanctity of life.”

Bailey has also signed off on a ballot summary from Ashcroft that appears aimed at ginning up opposition to the measure. The summary would tell voters that the amendment would “allow for dangerous, unregulated, and unrestricted abortions,” according to late April letters from Bailey to Ashcroft that include the summary.

Ashcroft’s summary also says the amendment would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion” and that it would guarantee “the right of any woman, including a minor, to end the life of their unborn child at any time.”

In 2022, the Missouri Supreme Court found that Ashcroft, who has strong anti-abortion views, used Missouri laws to delay abortion rights activists’ attempt to put the state’s abortion ban to a public vote in 2019. The court ruled in a 5-2 decision that the regulations allowed delays that infringed on the public’s right under the state constitution to use the referendum to revoke statutes by popular vote.

Bailey approved Aschroft’s summary. “It is in the form of a question using language that is neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure,” Bailey wrote.

The ACLU of Missouri in its legal complaint, filed on behalf of Fitz-James, called the ballot summary “insufficient and unfair” and said Fitz-James will have to ask the court for a different summary – signaling a future lawsuit.

Fitz-James, who submitted the amendment on behalf of the group Missourians for Constitutional Freedom, couldn’t be reached Thursday. A voicemail left with the group’s treasurer also wasn’t returned.

Abortion rights supporters criticized Ashcroft’s summary as an attempt to tip the scales against the proposal.

“This hostile and misleading summary statement, which is not unlike the ongoing attacks on the initiative petition process coming out of the Missouri legislature, shows that anti-abortion politicians … are terrified of Missourians having the opportunity to vote on abortion access because they know that abortion can win,” said Mallory Schwarz, executive director of Pro-Choice Missouri.

Ashcroft spokesperson JoDonn Chaney said the secretary “intends to follow the law.” Chaney added that Ashcroft’s office has not yet been served with the ACLU’s lawsuit.

On March 29, Fitzpatrick’s office sent Bailey a fiscal note that said state agencies estimated no costs or savings, “but unknown impact.”

The note said local governments estimated costs of at least $51,000 a year in reduced tax revenues and that opponents of the amendment estimate a potentially significant loss to state revenue.

Bailey responded on April 10 in a letter rejecting the fiscal note, arguing that it lacked the content needed for voters to know the “enormous financial impact this measure will have” on the state and called it “legally deficient.”

Missouri Right to Life, Campaign Life Missouri and the Heritage Foundation also submitted written comments to Fitzpatrick arguing the amendment would have a dramatic financial impact. The groups suggest the amendment could put Missouri out of compliance with federal law, risking Medicaid funding – about $12.5 billion a year in federal funds – if Catholic hospitals are cut off from Medicaid reimbursements, for instance.

Fitzpatrick’s office said in a formal explanation of its fiscal note that while opponents estimate significant costs, “much of it is speculative based on potential outcomes of the legislation,” making it difficult to summarize them based on their range and uncertainty.

Chuck Hatfield, a longtime Jefferson City attorney who worked in the Missouri Attorney General’s Office under Democrat Jay Nixon, said no Missouri attorney general has ever asserted the right to change the numbers in a fiscal note, saying it’s the job of the auditor to focus on math.

“It’s completely inappropriate,” Hatfield said.

Bailey faulted Fitzpatrick’s office for only requesting financial impact information from only 12 counties and 14 cities, and noted that only three counties and two cities responded.

One of those counties was Greene County, which includes Springfield. In a March 23 email to Fitzpatrick’s office, Greene County Clerk Shane Schoeller, a Republican who is running for Missouri secretary of state, wrote that the county expected to lose about $51,000 a year in sales and property tax revenue.

Schoeller’s estimate cites statistics from the Missouri Department of Health and Senior Services, which show 135 “resident abortions” in the county in 2020. Schoeller bases his estimate on the revenue lost from an annual loss of 135 residents in the county.

Kansas City officials told Fitzpatrick’s office the amendment would have no fiscal impact on the city.

Bailey wrote that Greene County’s methodology or a similar methodology should be applied to the population base of the whole state. He wrote that the average voter reading the summary will not know the small sample Fitzpatrick’s office used to develop its fiscal note.

“Voters reading the fiscal note summary are likely to be misled into thinking that this ballot measure will have little fiscal impact on state and local governmental entities. If it ultimately appears as part of the official ballot title, the fiscal note summary is likely to be met with a well-founded legal challenge to its fairness and sufficiency,” Bailey wrote, suggesting anti-abortion groups will sue over Fitzpatrick’s fiscal note.

Fitzpatrick responded in an April 21 letter, writing that his office had followed the same procedure used to draft fiscal notes for all initiative petitions over the past decade. He wrote that the process has been upheld by multiple courts. He said that while there is a “lack of evidence” that Missouri would lose federal funding, the fiscal note summary includes opponents’ concerns.

“As much as I would prefer to be able to say this IP would result in a loss to the state of Missouri of $12.5 billion in federal funds, it wouldn’t. To submit a fiscal note summary that I know contains inaccurate information would violate my duty as State Auditor to produce an accurate fiscal note summary,” Fitzpatrick wrote.

A spokesperson for Fitzpatrick declined to comment.

Emily Wales, the president and CEO of Planned Parenthood Great Plains Votes, said Bailey appeared to be struggling with his role as state attorney general, saying he was overstepping his authority to interfere with democracy.

“The democratic process is all about honesty and participation from voters, not pushing harmful and dangerous lies to fuel an extreme political agenda,” Wales said.

“If anyone should know how Missouri’s government is supposed to function – including through voters’ direct participation in the process – it should be the state’s top lawyer.”