Missouri Supreme Court orders attorney general to let abortion ballot initiative go forward

by Nathaniel Weixel - 07/21/23 12:09 PM ET

Missouri’s ballot initiative to legalize abortion will be allowed to move forward after the state Supreme Court ruled the state’s attorney general was improperly stonewalling the effort.

The court ruled unanimously Thursday that Attorney General Andrew Bailey (R) was using “misleading” and “incorrect” arguments to justify delaying his approval of the cost estimates ballot measure that would allow residents to vote on whether to legalize abortion, a crucial step in the certification process.

The delay stretched far beyond the normal time the state allows for reviewing and approving ballot initiatives, meaning supporters were unable to start collecting signatures to try to place the measure on the ballot for next year’s election.

The court acknowledged the harm to plaintiff Anna Fitz-James and the initiative process. The process should take approximately 54 days, according to the American Civil Liberties Union of Missouri, which represented Fitz-James. Instead, it’s taken at least 135 days.

“Until the official ballot title is certified – a critical step being held up solely by the Attorney General’s unjustified refusal to act – Fitz-James cannot challenge that title in circuit court or circulate her petitions,” the judges wrote. “Fitz-James’s constitutional right of initiative petition is being obstructed, and the deadline for submitting signed petitions draws nearer every day.”

In a statement, the ACLU of Missouri applauded the decision.

“While today is a tremendous victory for Missourians and the right to direct democracy, it is clear that some who hold office will not hesitate to trample the constitution if it advances their personal interests and political beliefs,” said Luz María Henríquez, the group’s executive director.

The dispute dates back to March, when as part of the procedure to qualify a ballot initiative, the state auditor’s office conducted a cost estimate. State auditor Scott Fitzpatrick found the proposal would have no known impact on state funds and an estimated cost of at least $51,000 annually in reduced local tax revenues, although “opponents estimate a potentially significant loss to state revenue.”

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Bailey rejected those estimates and refused to approve them. He instead said his office estimated the measure’s impact would be “drastic” and could cost taxpayers upward of $12 billion because of a loss of Medicaid funding.

Missouri was the first state to enact a “trigger law” in the wake of the Supreme Court’s decision overturning Roe v. Wade, and has one of the strictest abortion bans in the country. There are some exceptions for medical emergencies, but not for rape or incest.

The proposed ballot initiative would enshrine the right to make decisions about abortion, birth control, childbirth and other issues related to pregnancy in the state’s constitution.

Ballot measures to protect abortion have been successful in other conservative states. As a result, state officials have been working to try to make the measure process much more difficult, if not ban it completely.

The court ruled the attorney general has the authority only to review the “legal content and form” of the auditor’s reports, “not their substance.”

Nothing in state law “gives the attorney general authority to question the auditor’s assessment of the fiscal impact of a proposed petition,” the court ruled.

The attorney general must now approve the auditor’s fiscal assessment by 1 p.m. Friday, and the amendment will then be able to move forward.

The proposal will next go to the office of the Missouri secretary of state, who is tasked with certifying the fiscal assessment and a summary of the proposal that would appear on the ballot. Once that occurs, supporters can start gathering the more than 100,000 signatures needed.

Tags abortion abortion ban ballot measures Missouri