A judge could decide as early as Thursday whether Missouri Secretary of State Jay Ashcroft’s “fair ballot language” summary for an abortion-rights amendment is truly fair. 

Missouri voters will be asked on Nov. 5 whether they support Amendment 3, which would establish a constitutional right to an abortion up until fetal viability and protect other reproductive rights, including access to in-vitro fertilization and birth control. Abortion became illegal in Missouri in June 2022, with limited exceptions for the life and health of the mother.

Posted at every polling station around the state, next to sample ballots, is “fair ballot language” that summarizes the questions that voters will be asked to decide on. State law requires that this language, written by the secretary of state, be “true and impartial.”

In a lawsuit filed two weeks ago, organizers behind Amendment 3 claimed that Ashcroft’s summary was “intentionally argumentative” and could create confusion among voters. 

The same day Ashcroft certified the measure for the November ballot, his office also published to its website a “fair ballot language” summary statement for the amendment which reads: 

“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.” 

Missouri voters will decide whether to legalize abortion in November 

The abortion rights campaign is asking the court to issue new “fair ballot language” and order that Ashcroft remove his current language from his government website.

A brief bench trial Wednesday afternoon in Cole County Circuit Court focused in particular on the last sentence of Ashcroft’s summary, and how a court could interpret subsection 5 of the amendment, which reads: “No person shall be penalized, prosecuted, or otherwise subjected to adverse action based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion. Nor shall any 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, representing Ashcroft on behalf of the Missouri Attorney General’s Office, argued Wednesday that this subsection would result in “effectively neutering the government’s ability to enforce any effective regulations” on abortion. 

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

“The amendment will provide greater independence from the government,” she told the court. “But it does not create the boundless, limitless, unregulated right the secretary continues to make it to be.” 

Schafer said Ashcroft in the latest language “resurrects his false claims” that have already been denounced by the Missouri Court of Appeals.

Ashcroft was sued last year 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.” 

Cole County Circuit Judge Jon Beetem ruled a year ago that Ashcroft’s language was “problematic” and inaccurate. 

An appeals court agreed, ruling that 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.”

However, Crane on Wednesday argued that the appeals court ruling didn’t specifically address the immunity provisions of subsection 5.

Ashcroft, who recently lost a bid for the GOP candidate for governor, has been open about his opposition to abortion. 

During the Midwest March for Life outside in May, he told The Independent of the abortion initiative petition: “I just want to make sure that people know what this amendment will actually do. That it’s abortion from conception until the very last second that the last toenail leaves the birth canal.”

Cole County Circuit Judge Cotton Walker, who is overseeing the current case, said he intends to rule on Thursday. 

Walker recently upheld the “fair ballot language” summary written by Ashcroft for a proposed constitutional amendment that would ban ranked-choice voting after two voters sued over the language. The voters called the language imprecise, in part because it doesn’t state that it’s currently illegal for non-citizens to vote in Missouri. 

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. 

The campaign has raised millions of dollars this election cycle, and recent polling by St. Louis University/YouGov showed 52% of Missouri voters supported Amendment 3. The poll surveyed 900 voters across nine days in August.

Meanwhile, a second lawsuit regarding Amendment 3 is also pending 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.

A bench trial in that lawsuit is scheduled for Friday.