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Oct. 19, 2023 |  By: Rudi Keller - Missouri Independent

Jay Ashcroft joins legal team defending his summary of Missouri abortion amendment

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By Rudi Keller - Missouri Independent

There is a new member of the legal team defending the ballot language Secretary of State Jay Ashcroft wrote for proposed initiatives that would add abortion rights to the Missouri Constitution – Ashcroft himself.

Ashcroft, who was an engineer by trade until earning his law degree in 2008, rarely appeared in court on behalf of clients, he said in an interview with The Independent on Wednesday. He will be in court Oct. 30, when the Western District Court of Appeals in Kansas City hears arguments in the case, but said he won’t disclose whether he will take an active role in the hearing.

“That’s something that we’ll decide internally and it’s really not something I necessarily want to let the opposition know about before the trial date,” Ashcroft said.

Ashcfroft is appealing the Sept. 25 ruling that the ballot language he wrote for six proposed constitutional amendments was biased. Petitions must have an approved ballot title before signatures can be gathered.

In the decision that rewrote the ballot language, Cole County Circuit Judge Jon Beetem concluded  that “certain phrases included in the secretary’s summary are problematic in that they are argumentative or do not fairly describe the purposes or probable effect of the initiative.” 

The appeal will be argued before a panel of three judges, with a hearing immediately afterward before a separate panel of judges on the appeal of Beetem’s ruling upholding the financial summary that is also part of the ballot language.

His decision to add his name to the list of attorneys working on the case is not a criticism of Attorney General Andrew Bailey’s team assigned to the case, Ashcroft said.

“It is not something I do lightly,” Ashcroft said. “It is not, in any way, meant to say anything about the representation the attorney general’s office has provided.”

Ashcroft’s name, along with attorneys Josh Divine and Samuel Freedlund of the attorney general’s office, is on the appeal brief filed Oct. 11. In it, they argue that Beetem exceeded his authority by completely rewriting the ballot summaries for six initiatives. They also wrote that he failed to properly explain his reason for doing so.

“Indeed, in doing so, the trial court performed an executive function, placing serious stress on fundamental principles of separation of powers, and the trial court’s own language is both insufficient and unfair,” they wrote.

Anna Fitz-James, a St. Louis physician, filed 11 versions of the proposal with Ashcroft’s office in March on behalf of a political action committee called Missourians for Constitutional Freedom. 

Once a ballot title is finalized for the six summaries challenged in the court case, one petition will be chosen for signature-gathering to make the 2024 ballot.

The ACLU of Missouri is representing Fitz-James and on Wednesday filed its brief on her behalf. 

In his ruling, Beetem wrote that the problematic phrases Ashcroft used in his summary, which must be 100 words or less, include statements that the initiatives would allow “dangerous, unregulated and unrestricted abortions,” that abortion would be allowed “from conception to live birth” and could be performed by anyone “without requiring a medical license” or “potentially being subject to medical malpractice.”

The ACLU is asking the Western District judges to uphold Beetem’s ruling.

“Rather than providing nonargumentative, nonprejudicial, nonbiased summary statements, the Secretary takes a side in the debate and saturates the statements with moral frames favoring his opinion,” ACLU attorney Tony Rothert wrote. “Voters are entitled to a summary statement that is not argumentative.”

With the filing, all but one of the expected documents due before the Oct. 30 hearing is in the court’s hands. The court has also receive amicus briefs from the League of Women Voters, represented by former Missouri Supreme Court Chief Justice Mike Wolff, which want Beetem’s decision upheld, and state Senate Majority Leader Cindy O’Laughlin, R-Shelbina and represented by attorney Ed Greim, who wants the court to reverse Beetem.

Much of Ashcroft’s brief deals with what would happen to Missouri’s extensive laws regulating abortion if one of the initiatives passes.

Abortion became illegal in Missouri in June 2022 when the U.S. Supreme Court overturned the landmark Roe v. Wade decision that recognized a constitutional right to abortion. The only exception is for emergency abortions to save the life of the mother or when there is “a serious risk of substantial and irreversible physical impairment of a major bodily function.”

Prior to that time, heavy regulation had reduced the number abortion providers to a single clinic in St. Louis affiliated with Planned Parenthood. Before obtaining an abortion, a woman had to visit the clinic, receive state-mandated material on fetal development and alternatives to abortion, and then return after 72 hours for medication or, for later abortions, a medical procedure.

While some of the proposals allow the state to regulate abortions after fetal viability or 24 weeks of gestation, the appeal brief from Ashcroft says other language means regulation of late abortions would be meaningless. An abortion would be legal if a medical professional determined it would improve the mother’s health, the brief states.

“Under Respondent’s petitions, simply asking a dermatologist to say that abortion might clear up acne would be a permission slip for abortion through all nine months of pregnancy,” the brief states.

That is an absurd argument, Rothert wrote. Nothing in the petitions would overturn any existing regulation but it would open those regulations to challenge to determine if they were truly intended to promote the woman’s health.

Ashcroft’s argument “provides no evidence that the good-faith-judgment requirement is not a sufficient safeguard against his predicted outcomes,” Rothert wrote.

By law, the process for filing an initiative proposal with Ashcroft’s office to having it ready for circulation should take no more than 56 days. The hearing Oct. 30 at the Court of Appeals is the second round of litigation in the abortion case and has delayed signature gathering by seven months. It will be weeks before a decision and additional delays are likely with further appeals to the Missouri Supreme Court.

To make the 2024 ballot, backers must secure more than 170,000 signatures from registered voters by early May.

If it makes the ballot, voters at the same election could be deciding if Ashcroft becomes governor.

Ashcroft is the favorite in the race for the GOP nomination for many abortion foes. He received the endorsement of Missouri Right to Life, the largest political organization opposed to abortion, over Lt. Gov. Mike Kehoe and state Sen. Bill Eigel of Weldon Spring, the other GOP candidates mounting major campaigns.

In discussions of how to present the arguments to the appeals court, Ashcroft said, he pushed to lean heavily on whether Beetem had the authority to completely rewrite the ballot summaries.

“I was just incredulous that the court would just wave their magic wand,” he said. “If the court believes there are changes or problems or you name it, it is right for the court to say that, but it is incumbent upon the court to explain why. We are not ruled by kings.”