A Cole County judge set June 7 to hear arguments in a lawsuit demanding the state finalize its work on an abortion-rights initiative petition so proponents can begin collecting signatures.

Circuit Court Judge Jon Beetem scheduled a bench trial in the case during a hearing last week.

The ACLU of Missouri filed its lawsuit earlier this month after The Independent revealed a behind-the-scenes push by Missouri Attorney General Andrew Bailey to convince the state auditor’s office to increase the projected cost of the abortion amendment.

Because Bailey refused to sign off on Auditor Scott Fitzpatrick’s fiscal note, Secretary of State Jay Ashcroft says he can’t finalize work on the summary that would appear on the ballot next year. 

According to the lawsuit, the ballot summary was supposed to be completed by May 1. 

The ACLU refers to the situation in its latest filing in the case as a “bungled effort reminiscent of Abbott and Costello’s ‘Who’s on First?’” routine. The impasse has left the secretary of state believing he is “impotent to do anything other than wait for the auditor or attorney general to change his respective mind.”

But empowering the attorney general to single-handedly “defeat the right of initiative is the type of authority characterizing a despot, not a Missouri official,” the organization argued.

The secretary of state’s office has consistently said it is simply following Missouri law, which requires a fiscal note before the summary can be finalized. The attorney general’s office has defended its actions by saying it will “use every tool at our disposal to defend the sanctity of life.”

‘Inaccurate information’

Eleven versions of a proposed initiative petition seeking to roll back Missouri’s ban on abortion by adding protections for the procedure to the state constitution were filed in early March with Ashcroft’s office. 

Currently, most abortions are outlawed in the state, with exceptions for medical emergencies but not for rape or incest.

Before a proposed initiative petition may be circulated for signatures, the secretary of state sends it to the auditor to create a fiscal note and a fiscal note summary that states “the measure’s estimated cost or savings, if any, to state or local governmental entities.”

Fitzpatrick’s office consulted with state and local governments, and heard from opponents of the proposal, to craft a fiscal summary that stated there would be “no costs or savings” due to the abortion amendment. 

The summary said one local government entity estimates losing at least $51,000 in reduced tax revenues, and that opponents of the proposal contend it could lead to significant loss in state revenue. 

Fitzpatrick submitted his work to Bailey’s office, which is tasked with approving the legal content and form of the summary.

Bailey would not approve the summary unless it said that the amendment could cost the state at least $12.5 billion in lost Medicaid funding, as well tens of billions in possible lost of tax revenue because “aborting unborn Missourians will have a deleterious impact on the future tax base.”

The auditor refused, telling the attorney general that he would not include “inaccurate information” in his fiscal summary.

Chuck Hatfield, a longtime Jefferson City lawyer who worked in the attorney general’s office under Democrat Jay Nixon, said soon after the back-and-forth was revealed that Bailey’s attempt to alter the fiscal summary appeared unprecedented.

The impasse derailed the process of preparing a ballot summary. 

In addition to delaying the signature-gathering process, the ACLU is also unable to file a lawsuit challenging the ballot summary the secretary of state’s office crafted. 

Public records obtained through Missouri’s Sunshine Law show that Bailey signed off on Ashcroft’s proposed ballot language that says the abortion constitutional amendment would allow “dangerous, unregulated and unrestricted abortions” and “nullify long standing Missouri law protecting the right to life,” among other provisions.

The ACLU telegraphed a future lawsuit challenging the ballot summary, saying the secretary of state’s work is “insufficient and unfair” and will require proponents to “ask the court for different summary statements.”

In 2019, Ashcroft was accused of intentionally dragging his feet in certifying a referendum seeking to overturn a law making it a crime for a doctor to perform an abortion after eight weeks. The delays left proponents of the referendum little opportunity to gather enough signatures to force a referendum on the 2019 abortion law, and the effort fizzled. 

Three years later, the state Supreme Court ruled that those seeking to force a referendum on new laws can begin collecting signatures as soon as the new law is passed by the legislature.