Missouri judge strikes down Ashcroft's 'misleading' description of abortion rights amendment

A Missouri judge on Thursday struck down Secretary of State Jay Ashcroft’s official description of an abortion rights amendment that would have appeared at polling places across the state on Nov. 5.

Cole County Circuit Court Judge Cotton Walker found that Ashcroft’s language summarizing the amendment, called Amendment 3, was unfair and misleading to voters. Walker’s 12-page order rewrote the language, called “fair ballot language.”

“After considering the record before the Court and the arguments of the parties, the Court concludes the fair ballot language for Amendment 3 is unfair, insufficient, inaccurate, and misleading,” Walker wrote in the order.

The lightning-fast ruling came one day after a hearing in the case in Jefferson City. It comes ahead of a historic vote on Nov. 5 to overturn the state’s abortion ban, which was enacted in 2022.

The lawsuit centered on the “fair ballot language” from Ashcroft’s office that summarized the proposal at polling places. The short statement is intended to provide voters an overview of what the amendment would do.

Ashcroft also posted the language, which does not actually appear on the ballot, on the secretary of state’s website. Anna Fitz-James, a retired doctor who filed the amendment, sued, arguing that the language was misleading to voters.

Tori Schafer, an attorney with the ACLU of Missouri, argued the case on behalf of Fitz-James while Andrew Crane with the state Attorney General’s Office defended Ashcroft.

The ruling is a win for abortion rights supporters as they prepare for the momentous vote on Nov. 5. Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, the main campaign in favor of the measure, touted the ruling as a “clear victory for Missouri voters.”

“Missourians for Constitutional Freedom has fought tirelessly since 2023 to ensure that voters have access to fair and accurate information when they head to the polls,” Sweet said. “Once again, the courts have affirmed that politicians cannot use deceptive and misleading ballot language to distort the truth.”

The ruling also marks another major loss in court for Ashcroft related to the abortion rights amendment. Ashcroft spokesperson JoDonn Chaney said his office was reviewing the court’s decision.

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

Ashcroft had previously crafted incendiary language for the ballot question that would have asked voters to “allow for dangerous, unregulated, and unrestricted abortions.”

Another Cole County judge tossed Ashcroft’s language in September 2023. An appeals court later upheld that ruling, writing that Ashcroft’s summaries were “replete with politically partisan language.”

The language that Ashcroft’s office approved for polling places (and his website) said the amendment would enshrine the right to abortion “at any time of pregnancy” and would prohibit “any regulation of abortion,” including rules to protect women.

It also said the measure would prohibit any civil or criminal penalties for anyone who performs an abortion that injuries or kills a pregnant woman.

The description echoes language already rejected by Missouri courts that Ashcroft tried to use to summarize the proposal in 2023. The Missouri Court of Appeals Western District unanimously rejected that summary and ordered the secretary of state to instead use less inflammatory phrasing.

Judge rewrites language

Whether it was intentional or not, Walker wrote in his order, Ashcroft’s language “sows voter confusion about the effects of the measure.” He rewrote the language to state the following:

• “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 or 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.”

• “A ‘no’ vote will continue the statutory prohibition of abortion in Missouri.”

The amendment that will appear on the ballot would enshrine abortion rights in the state constitution but also give lawmakers some room to regulate the procedure after fetal viability.

The ballot measure defines fetal viability as the point in a pregnancy when a health care professional decides, based on the facts of the situation, “there is a significant likelihood of the fetus’s sustained survival outside of the uterus without the application of extraordinary medical measures.”

Ashcroft’s argument that the amendment would allow abortion at any time in pregnancy was “blatantly misleading,” Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, the main campaign in favor of the measure, previously said.

Any post-viability ban would be required to allow at least three exceptions – for the life, physical and mental health of the woman.

While Thursday’s order marked another victory for the abortion rights campaign, the legal battles are not over. A trial is scheduled for Friday over a lawsuit from two Republican lawmakers and an anti-abortion activist that seeks to block the amendment from the ballot.