Updated at 7:30 a.m. on Saturday, Oct. 28, 2023, with details of an additional lawsuit over the fiscal note:
A group seeking to scale back Missouri’s ban on most abortions is suing over how Secretary of State Jay Ashcroft described the measures and how much state Auditor Scott Fitzpatrick estimated they could cost.
The Missouri Women and Family Research Fund filed six initiatives earlier this year that would allow for abortions in the case of rape, incest, fatal fetal abnormalities or risks to health or safety of a mother. Several also would allow abortions up to 12 weeks of pregnancy.
A lawsuit filed on Thursday from fund Executive Director Jamie Corley contends that the way Ashcroft summarized the initiatives “are intentionally argumentative, insufficient, and unfair.”
“Secretary Ashcroft described certain provisions of the initiative petitions in antagonistic and blatantly incorrect terms likely to prejudice voters against the measures,” the lawsuit states. “The law requires Missourians be presented with unbiased summaries of these petitions, which seek nothing more than to establish the right for Missouri women to make reproductive health care decisions for themselves.”
Corley said in a statement that voters "should heed these political moves as a canary in the coal mine for the lengths some politicians will take to keep the government involved in a woman — or child’s — pregnancy, even if that pregnancy is a result of rape."
“When we go to court it provides an opportunity to remind Missourians that we have the most extreme, punitive abortion law in the country, and it’s clear some politicians will do whatever they can to see that it stays on the books,” Corley said.
Corley’s suit specifically takes issue with language stating that some of the initiatives “nullify Missouri laws protecting the right to life.” The suit says the initiatives would not repeal Missouri laws relating to abortion — only ones that conflict with the provisions of the initiative petitions.
“The first bullet point is also unfair and insufficient because it uses the phrase 'protecting the right to life,'” the suit says. “That phrase is politically charged and will bias individuals against [the initiative petitions].”
Additionally, the lawsuit takes issue with language saying some versions of the initiative “allow abortions at any age without government interference from conception to live birth” and “prohibit abortions regarding an alleged rape or sexual assault unless reported to a specific crisis hotline.”
“Abortions are not performed during or after a live birth. Further, federal law prohibits ‘partial-birth abortions’ and cannot nullify federal law,” the lawsuit states. “[The initiative] does not prohibit an abortion in the case of rape or sexual assault ‘unless reported to a specific hotline.’ The Initiative Petition does not specify any particular hotline where the report must be made.”
And the lawsuit takes aim at the fiscal notes of the initiatives, which states that “the Attorney General’s office and opponents estimate a potentially significant loss to state and local revenue” and that the attorney general’s office “estimates increased state litigation costs of up to $21 million.”
“The ‘potentially significant loss to state and local revenue’ is based on faulty assumptions,” the lawsuit says. “The estimation of litigation costs is based on the Attorney General winning his reelection then choosing to abdicate his duty to defend the laws of the state of Missouri. In addition to being blatantly false and misleading, the fiscal note summary is argumentative.”
Ashcroft said in a statement that the lawsuit “is another example of individuals trying to mask the truth to mislead voters.”
“The secretary of state’s office will always fight to protect the right of Missourians to make their own decision on how to vote,” Ashcroft said
In a statement, Fitzpatrick said on Friday that his office has "been consistent with our treatment of all initiative petitions as we've used a process that has worked for decades to produce accurate and unbiased cost estimates."
"While I understand both proponents and opponents would prefer a fiscal note that favors their position, my commitment to the voters of Missouri will not be swayed by political pressure from either side," Fitzpatrick said. "We will defend our work once again and will continue to produce fair fiscal notes and fiscal note summaries the voters can trust."
Other litigation has been filed over how 11 other abortion initiatives from Missourians for Constitutional Freedom are described. A Cole County judge rewrote Ashcroft’s ballot summaries, but Ashcroft is appealing that decision.
Chuck Hatfield, the attorney who filed the lawsuit for Corley, said that the litigation will not necessarily stop the Missouri Women and Family Research Fund from gathering more than 171,000 signatures by next May.
Based on legal precedent, Hatfield said, “We can gather signatures if we want to.”
“And if we later have the ballot title change, those signatures will all still count,” Hatfield said. “We're likely going to go ahead and gather signatures on this bad ballot title, because we think people will understand what we're doing. And we can explain it. We do want to try to get it changed, because this is the language people see when they actually vote. And it's important that they have a fair title and actually vote.”
Abortion rights opponents challenge fiscal note
On Friday, three opponents of abortion rights filed a lawsuit challenging Fitzpatrick's fiscal estimates of Corley's initiatives.
Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, and Kathleen Frock want the fiscal note to state "the Attorney General and others estimate a significant loss of state revenue, potentially billions of dollars." The lawsuit also wants the fiscal note to state that "local governments estimate reduced revenues, which extrapolated across the state could cost millions of dollars."
"The proposed amendments would allow the destruction of thousands of pre-born Missouri citizens a year, with profound consequences to Missourians that far eclipse financial concerns," the lawsuit states. "As part of the initiative petition process, however, the Auditor is legally tasked with the grim calculation of the financial costs to Missouri from this enormous human loss."
The three plaintiffs filed a similar lawsuit against the financial estimates of the 11 initiatives from Missourians for Constitutional Freedom. A Cole County judge sided with Fitzpatrick in September, and the case is currently still winding through the appeals process.
