MO courts tossed abortion ballot measure description. Why is Ashcroft trying again?

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When Missouri Secretary of State Jay Ashcroft last year released an official summary of a proposed abortion rights ballot measure that said the proposal would allow dangerous and unrestricted abortions, state courts struck down the description as partisan.

The Republican official, now in the twilight of his time in office, is trying again.

Ashcroft this month certified for the November general election a proposed constitutional amendment to overturn Missouri’s abortion ban . The decision came after election officials verified that supporters had gathered enough valid petition signatures from across the state.

The secretary of state also released “fair ballot language” summarizing the proposal – a brief statement displayed at polling locations that provides a high-level overview of the consequences of a yes or no vote. Ashcroft has also posted the fair ballot language, which does not actually appear on the ballot, on the secretary of state’s website.

But the fair ballot language approved by Ashcroft says the amendment would enshrine the right to abortion “at any time of pregnancy” and would prohibit “any regulation of abortion,” including rules to protect women. It says the measure would prohibit any civil or criminal penalties for anyone who performs an abortion that injuries or kills a pregnant woman.

The description echoes language already rejected by Missouri courts that Ashcroft tried to use to summarize the proposal in 2023. The Missouri Court of Appeals Western District unanimously rejected that summary and ordered the secretary of state to instead use less inflammatory phrasing.

The proposed constitutional amendment would enshrine the right to an abortion in the state constitution while also giving lawmakers some leeway to regulate the procedure after fetal viability. If voters approve the measure, Missouri could be the first — or one of the first — states where voters have overturned an abortion ban since the U.S. Supreme Court ended the federal right to abortion in 2022.

Under the amendment, fetal viability is defined as the point in a pregnancy when a health care professional decides, based on the facts of the situation, “there is a significant likelihood of the fetus’s sustained survival outside of the uterus without the application of extraordinary medical measures.”

The fair ballot language reflects arguments advanced by amendment opponents, including the idea, which amendment supporters call false, that the proposal would wipe away protections for women injured during a procedure. Abortion opponents say the amendment would allow abortion at any point in pregnancy; supporters say it would guarantee abortion access up until fetal viability “with exceptions for the health and safety of the patient.”

Just like last year, Ashcroft faces a legal challenge over his word choice.

The ACLU of Missouri last week filed a lawsuit in Cole County Circuit Court seeking to overturn the fair ballot language. The lawsuit was filed on behalf of Anna Fitz-James, a retired St. Louis doctor who originally submitted the amendment proposal.

The ACLU of Missouri’s petition goes point by point through the similarities between the fair ballot language and the summary language previously tossed by the appeals court. The petition asks a judge to write a new, impartial description.

The summary language Ashcroft attempted to advance last year said the measure would “allow for dangerous, unregulated, and unrestricted abortions.”

“Rather than reflecting the fair and sufficient summary statement certified by the Court of Appeals, the ‘fair ballot language’ here echoes the Secretary of State’s original, misleading summary statement that was rejected by the Court of Appeals as unfair, insufficient, misleading, prejudicial, and argumentative,” the petition says.

Concerns with SOS site

The court filing also voices concern with Ashcroft’s decision to publish the current fair ballot language on the secretary of state’s website. The filing warns the posting will cause voter confusion and asks a judge to prohibit Ashcroft from including the current language on the website.

“The secretary of state continues to act unconstitutionally to mislead Missouri voters,” Tori Schafer, ACLU of Missouri director for policy and campaigns, said in an interview on Wednesday.

“It’s disappointing the secretary of state chose to use this language when a court has so clearly told him on multiple occasions the language the secretary of state’s office uses and the attorney general approves needs to be impartial and fair,” Schafer said. “And this language clearly is not that.”

Ashcroft, who came in third in the GOP primary for governor and will leave office in January, appears to welcome the fight, which could lead to a repeat of last year’s legal wrangling over the ballot summary in which Ashcroft and Missouri Attorney General Andrew Bailey grabbed headlines promoting their effort to uphold the secretary of state’s summary even as courts eviscerated their arguments.

“I am appalled that factions want to use the courts to misrepresent the truth to push a political agenda,” Ashcroft said in a statement. “I will always fight for the right of Missourians to have clear, understandable ballot language when they vote on such an important fundamental issue as life.”

Bailey, a Republican, is seeking election in November after he was appointed attorney general in 2023. The legal fight over the fair ballot language could provide a new round of publicity for the candidate.

Bailey’s office didn’t respond to a request for comment.

Michael Wolff, a former Missouri Supreme Court chief justice, said that fair ballot language has never been an issue before because voters typically don’t read them.

But the problem now is that Ashcroft put the language on his website. Wolff, who said he gave some legal advice to lawyers representing the abortion rights campaign, warned the language could be used by abortion opponents to confuse voters.

“Now that we have the widespread use of the web and social media and all that, you have false information on the official website of the Secretary of State,” Wolff said.

Hoskins backs Ashcroft

While lawsuits over ballot summaries are common, fewer legal challenges have been brought over fair ballot language. The outcome of the current suit could send a signal about how much leeway courts are willing to give future secretaries of state who attempt to bend the descriptions one way or another.

Sen. Denny Hoskins of Warrensburg, the Republican candidate for secretary of state , has aligned himself with Ashcroft on his description of the abortion amendment. In a statement, he called the language fair and accurate and called the amendment “barbaric.”

“It would also prevent our state from passing laws to protect pregnant women from being harmed or even killed by botched abortions,” Hoskins said.

Schafer has previously called that claim “fully false.” The amendment wouldn’t impact previous malpractice laws, she said.

Rep. Barbara Phifer, the Democratic candidate for secretary of state, said that Ashcroft “fundamentally misunderstands the job of secretary of state.”

That job, she said, is to ensure that people know what they’re voting on, have accurate information and that all eligible voters are able to vote. It’s not to push a particular agenda, she said.

“Just doing this kind of thing creates uncertainty about the election process, which threatens democracy,” she said. “It’s not funny, it’s not silly. It’s a fundamental attack on who we are as the American people.”