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

Jay Ashcroft to appeal abortion ballot summary ruling to Missouri Supreme Court

scales of justice

By Rudi Keller - Missouri Independent

Secretary of State Jay Ashcroft will try again to salvage the ballot summary he wrote for abortion rights initiative petitions with an appeal to the Missouri Supreme Court.

Ashcroft’s language has been savaged in opinions from two courts, most recently when the Western District Court of Appeals ruled his summaries are “replete with politically partisan language.”

In a Thursday interview with The Independent, Ashcroft said notice will be filed with the state’s highest court seeking a review of the Western District decision. The deadline for the appeal is Saturday.

The Oct. 31 appellate ruling upheld, with only minor revisions, the revised ballot titles written by Cole County Circuit Judge Jon Beetem.

“I hope we’ll end up with a different result because what happened at the lower courts was inappropriate,” Ashcroft said.

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.”

As Ashcroft was preparing to file an appeal Thursday, a separate effort to restore abortion rights was playing out in a St. Louis courtroom. Circuit Judge Jason Sengheiser heard arguments in a case seeking to overturn Missouri’s abortion ban as a violation of religious rights.

For the ballot initiatives, the Supreme Court will be the final step in a process that began in March. Anna Fitz-James, a St. Louis physician, filed 11 proposed constitutional amendments with Ashcroft’s office in March on behalf of a political action committee called Missourians for Constitutional Freedom.

A lengthy battle over the fiscal note summary – a statement of financial impact on state and local governments – and the authority of the attorney general to force changes delayed Ashcroft’s certification of the ballot title to July.

Ashcroft’s job at this point is to write a summary of 100 words or less, make sure the petition is in the legal form and accept public comments prior to certifying it as ready for signatures.

Fitz-James, with the help of the ACLU of Missouri, challenged the ballot language for six of the proposed initiatives. That is the case Ashcroft wants to bring before the Supreme Court of Missouri.

If the court accepts the case, it would likely be put on an expedited schedule but a decision before the end of the year is uncertain. Five weeks elapsed between the notice of appeal for Beetem’s ruling and a decision from the Western District.

A major point raised in the appeal, which Ashcroft again emphasized in the interview, is that Beetem did not quote the ballot titles Ashcroft wrote in their entirety. Instead, Beetem listed 13 points where he found the language violated the statutory requirement of impartiality.

In the interview Thursday, Ashcroft criticized the Western District judges, saying they ignored important legal points and the panel of three judges was stacked against him.

“The panel you get affects the results you get and you know with Ardini on that, and the chief judge, we knew at the very beginning what we were gonna get,” Ashcroft said. “I don’t think our arguments mattered at all. We had to do what we had to do but you know that was a foregone conclusion with that panel.”

The three judges who made the ruling are Lisa White Hardwick, appointed by Gov. Bob Holden, a Democrat, in 2001, and a former chief judge of the district; Edward Ardini Jr., appointed by Gov. Jay Nixon, a Democrat, in 2016; and Thomas Chapman, appointed to the court by Gov. Mike Parson, a Republican, in 2018.

Complaints about the panel are a political point Ashcroft is testing for use as he runs for governor, Tony Rothert, legal director of the ACLU of Missouri, said in a statement.

“Judges are not politicians,” Rothert said. “Instead of doing his job, the secretary is using the ballot-title process to boost his campaign. That is the reason why all three judges who have reviewed the case found he failed to write an impartial summary.”

In the unanimous opinion, written by Chapman, the appeals court zeroed in on particular phrases used by Ashcroft as especially troublesome. In the ballot title for each of the six proposals, Ashcroft wrote that passage would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion.”

“The use of the term ‘right to life’ is simply not an impartial term,” Chapman wrote.

If the language is in the summary, Ashcroft said in an interview, it is because it is used in Missouri statutes to describe state policy. 

While the language is used in the anti-abortion movement, it wasn’t deliberately used to trigger voters, he said.

“If there was anything in the language that would signal to certain people that they didn’t like it, It was required because of what the actual initiative petition said,” Ashcroft said.

Political fallout

The abortion case became an issue in the Republican primary for governor this week when the American Dream PAC, a fund supporting Lt. Gov. Mike Kehoe, used Ashcroft’s words after the Western District hearing to attack him as a “quitter.”

A successful signature campaign would likely put an abortion initiative on the November 2024 ballot. Ashcroft hopes to be on that ballot as the GOP nominee for governor, as does Kehoe and state Sen. Bill Eigel of Weldon Spring.

Outside the courthouse, Ashcroft was pressed about his ability to enforce abortion rights if he becomes governor. 

“Anytime a statewide official is sworn in, we swear an oath to uphold the Constitution of the United States and of the state of Missouri,” Ashcroft replied. “If I cannot do that, then I would have to leave my position. I cannot swear an oath and then refuse to do what I’d said I would do.”

For the PAC ad, that became Ashcroft saying he would quit if the measure passes.

“If somebody believes they are a quitter, we should believe them,” the ad states.

In response, Ashcroft said the question he was asked was a hypothetical. It requires several uncertain things to happen, including Ashcroft winning the primary and a successful signature campaign. And he would have to conclude he was unable, in good conscience, do what the law required.

“It is improper for someone to take the people’s money and not do the job that they’re getting paid to do,” Ashcroft said.

St. Louis case

 During Thursday’s arguments in St. Louis over whether Missouri’s abortion ban violates religious rights, the key questions were whether the statutes promote a particular religious doctrine and whether the statements of lawmakers, tying their votes for the ban to their beliefs, matters in court.

The case filed in January initially sought to enjoin local prosecutors from enforcing criminal sanctions for abortion as well as overturn the law as a religious rights violation. Through a series of ruling, Sengheiser has whittled the case down to the religious challenge and arguments Thursday were for a ruling on the case filings.

The plaintiffs are religious leaders from Christian, Jewish and Unitarian congregations.

The law being challenged is neutral, with no religious group singled out for disparate treatment, Assistant Attorney General Maria Ann Lanahan argued Thursday.

And the comments of legislators during debate are generally not accepted as evidence of intent, she noted.

“The bills passed by far more than the number of legislators that were making the complained-of comments,” Lanahan said. “And the comments don’t show the legislators wanting to impose their religion on others, only that the legislation was in harmony with those legislators’ religions.”

“The context shows that the purpose (of bills passed in 2017 and 2019) was undeniably religious,” argued Kalli Joslin of Americans United for Separation of Church and State. “But the state respondents say ‘ignore context’ and look only to the laws’ texts and stated goals to see if it advances any plausible secular purpose.”

At the end of the hearing that lasted a little over one hour, the judge told attorneys they would get the answer in early January.