Missouri AG ordered to allow abortion legalization petition to advance

The court ordered Missouri Attorney General Andrew Bailey to sign the accurate fiscal note on...
The court ordered Missouri Attorney General Andrew Bailey to sign the accurate fiscal note on an abortion ballot initiative within 24 hours, or by 1 p.m. Friday.(David A. Lieb | AP)
Published: Jul. 20, 2023 at 3:56 PM CDT
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KANSAS CITY, Mo. (KCTV) - A years-long struggle by abortion-rights activists to allow Missourians to directly vote on keeping or repealing a near-total abortion ban could come to an end after a decision handed down from the Missouri Supreme Court today.

The court ordered Missouri Attorney General Andrew Bailey to sign the accurate fiscal note on an abortion ballot initiative within 24 hours, or by 1 p.m. Friday.

The ruling comes after the Attorney General encouraged the state auditor evaluating the amendment, Scott Fitzpatrick, to falsely inflate the cost of the initiative. The exaggeration of the cost caused a standstill, preventing supporters from gathering the number of petition signatures needed for abortion to make it onto the 2024 ballot.

Last month, a judge ruled the attorney had no right to inflate the cost of the ballot measure, which had indicated the state would lose around $12.5 billion in Medicaid. The figure, heavily pushed by anti-abortion lobbyists, was found to be inaccurate, court records show.

Greene County reported an anticipated fiscal loss of $51,000, but all other responsive counties estimate no fiscal impact from the ballot initiative.

READ MORE: Mayor Lucas joins others attempting to stop Missouri AG from blocking statewide abortion vote

In a 20-page opinion from Judge Paul Wilson, the court affirmed a previous ruling handed down from the Cole County Circuit Court granting a writ of mandamus, or an order from a court to order a government official to properly fulfill their official duties, to Bailey.

State statutes require Bailey to sign the fiscal note within 10 days – a window of time that expired more than three months ago.

The opinion asserts that Bailey had no authority to question the fiscal legitimacy of the ballot initiative and his actions are unjustifiable. By only approving the initiative’s summary statement and not its fiscal note, Secretary of State Jay Ashcroft is not able to approve the proposed petition. Without the secretary’s and the attorney general’s approvals, organizers such as Anna Fitz-James cannot begin to collect petition signatures.

The opinion asserts that only the state auditor, not the attorney general, has the authority to assess the impact of a proposed measure and that the attorney general must notify the auditor in a timely manner. Nothing in state statute gives him any authority to review the contents of a fiscal note or a fiscal note summary.

The court called Bailey’s arguments “inappropriate,” out of context, “misleading” and “incorrect” while failing to disprove the ruling of the lower courts.

The opinion also acknowledged that Anna Fitz-James, the organizer of the ballot initiative, suffered as a result of Bailey’s actions because she was unable to begin collecting signatures.

“If the Attorney General had complied with his duty to approve the Auditor’s fiscal note summaries in the time prescribed by [a state statute], the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago,” it reads.

The ACLU of Missouri, which filed a verification petition for the writ of mandamus to compel Bailey to act, branded the high court’s decision as a “victory.” However, the petition still took 81 days longer to be certified compared to other ballot initiatives.

As a result of the lost time, the ACLU of Missouri said signature collection efforts will now be much more costly.

How long has an abortion ballot initiative been on the table?

In 2019, Missouri enacted an 8-week abortion ban. Under the state constitution, a referendum could be held on a new law so long as abortion-rights activists could gather enough signatures by a summer deadline.

This means laws like the 8-week abortion could be put to a vote if activist groups gather enough signatures before the deadline. Then, Missourians could decide through a ballot measure whether to keep or overturn a law.

However, advocates were not able to meet the late-summer signature deadlines for a number of reasons: Ashcroft refused to approve the language of the initiative until a court ordered him to, and he finished approving the measure when supporters had just two weeks left to collect thousands upon thousands of signatures.

The paperwork trail is part of the reason why abortion-rights activists are still struggling to put the initiative on the ballot. Bailey’s refusal to approve the fiscal note and subsequent cost inflation of the measure has left the initiative unable to move forward, meaning that supporters cannot yet begin collecting the number of signatures required to put abortion to a statewide vote.

Missourians used ballot initiatives in 2020 to expand Medicaid statewide and in 2018 to increase the minimum wage.

Missouri’s 2023 legislative session saw a number of attempts by primarily Republican lawmakers to restrict ballot initiatives, making it harder to pass constitutional amendments.