Missouri Secretary of State Jay Ashcroft joined the Midwest March for Life on May 1 at the Missouri State Capitol (Anna Spoerre/Missouri Independent).

Missouri Secretary of State Jay Ashcroft has been ordered to remove his characterization of an abortion rights amendment from his government website after a judge deemed it was unfair and violated state statute.

A Cole County judge on Thursday ruled that Ashcroft’s “fair ballot language” summary of the reproductive rights amendment, also known as Amendment 3, was “unfair, inaccurate, insufficient and misleading.”

“Intentionally or not, the secretary’s language sows voter confusion about the effects of the measure,” Circuit Judge Cotton Walker wrote in a Thursday afternoon decision. 

The day Ashcroft certified the abortion-rights amendment for the Nov. 5 ballot, a “fair ballot language” summary for Amendment 3 was also published on his office’s government website. That summary will also appear at every polling place around the state next to sample ballots. By state law this summary must be “true and impartial.”

Ashcroft is vocal in his opposition to abortion.

Amendment 3, if passed by a statewide majority vote, would establish the constitutional right to an abortion up to the point of fetal viability. Since the overturning of the U.S. Supreme Court decision to overturn Roe v. Wade in June 2022, nearly all abortions became illegal in Missouri, with limited exceptions for the life and health of the mother. 

It would also enshrine other reproductive rights in the constitution, including in-vitro fertilization and birth control, both of which remain legal in Missouri. 

Ashcroft’s summary of the amendment read: “A ‘yes’ vote will enshrine the right to abortion at any time of pregnancy in the Missouri Constitution. Additionally, it will prohibit any regulation of abortion, including regulations designed to protect women undergoing abortions and prohibit any civil or criminal recourse against anyone who performs an abortion and hurts or kills the pregnant women.” 

Abortion-rights activists in a lawsuit filed two weeks ago called Ashcroft’s summary of the amendment harmful and confusing to voters.

Walker agreed, ruling that Ashcroft’s assertion that the amendment would allow the right to an abortion at any point in pregnancy “gives voters the wrong idea of what the amendment will accomplish.”

The secretary of state’s office said in a statement that it is reviewing the judge’s decision. 

“Secretary Ashcroft will always stand for life and for the people of Missouri to know the truth,” JoDonn Chaney, a spokesperson for Ashcroft, said Thursday afternoon.

Walker’s decision came a day after a bench trial in which both sides argued over what the amendment would mean for Missourians if approved by voters. 

The brief trial was focused on language around provider immunity.

The amendment reads, in part, that no person “assisting a person in exercising their right to reproductive freedom with that person’s consent be penalized, prosecuted, or otherwise subjected to adverse action for doing so.”

Andrew Crane, a lawyer representing Ashcroft on behalf of the attorney general’s office, argued Wednesday that the amendment would lead to “effectively neutering the government’s ability to enforce any effective regulations” on abortion. 

Such a claim was “politically-charged” and unfounded, since it fails to take into account other language in the amendment protecting patients, said Tori Schafer, an attorney with the ACLU of Missouri, which is representing the plaintiff.

Walker wrote that Ashcroft’s argument runs “contrary to the language of the amendment and will give voters the mistaken impression that the amendment will allow physicians to perform abortions negligently or criminally.” 

The judge said Ashcroft’s argument of provider immunity “ignores, with respect to health care providers, that the protection from prosecution (1) hinges on the patient’s consent and (2) is coextensive with the right to reproductive freedom and its regulation.” 

Walker on Thursday provided new “fair ballot language” to be posted on the secretary of state’s website and at polling places. It reads: 

“A ‘yes’ vote establishes a constitutional right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid; removes Missouri’s ban on abortion; allows regulation of reproductive health care to improve of maintain the health of the patient; requires the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and allows abortion to be restricted or banned after fetal viability except to protect the life or health of the woman.”

The Amendment 3 lawsuit was filed by retired physician Dr. Anna Fitz-James, who initially filed the abortion rights initiative petition in spring 2023 on behalf of Missourians for Constitutional Freedom, the campaign behind the amendment. 

“Missourians deserve the chance to vote on Amendment 3 based on facts,” Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, said in a statement following the decision. “And today’s decision brings us one step closer to making that a reality.”

Walker’s decision mirrored one made by Cole County Circuit Judge Jon Beetem last year, after Ashcroft was also sued by the abortion-rights campaign over the initial ballot summary he drafted, which would have asked Missourians, in part, if they wanted to “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth.” 

Beetem in his ruling a year ago said that Ashcroft’s language was “problematic” and inaccurate. 

Ashcroft appealed, but the higher court sided with Beetem, writing it is “not a probable effect” that the amendment would allow unrestricted abortion in all nine months of pregnancy or that it would toss aside health and safety regulations, “including requirements that physicians perform abortions and that they maintain medical malpractice insurance.”

A second lawsuit regarding Amendment 3 will be challenged at a bench trial on Friday in Cole County after a number of anti-abortion activists and lawmakers asked a judge to block the amendment from the Nov. 5 ballot. Their lawsuit claims Amendment 3 violates the state constitution by including more than one subject and fails to specify which laws and constitutional provisions would be repealed if it was approved.