Missouri Attorney General Andrew Bailey listens at a news conference on May 19, 2023, at the Carnahan Courthouse in St. Louis.
JEFFERSON CITY — The Missouri Supreme Court handed Gov. Mike Parson’s hand-picked attorney general a high-profile loss Thursday, ruling that Republican Andrew Bailey improperly injected himself into a fight over abortion rights.
Acting quickly on an issue that has pitted Bailey against state Auditor Scott Fitzpatrick, the court in its 6-0 decision said the attorney general must comply with a lower court judge’s order to certify language associated with a proposed ballot initiative asking Missouri voters if they want to restore the right to abortion.
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The court said Bailey has “no discretion” to inject his own opinion on the potential cost of the proposed constitutional change and must comply with Cole County Circuit Judge Jon Beetem’s order to approve the cost estimate forwarded to him by Fitzpatrick.
They added that the plaintiff, Anna Fitz-James, who is being represented by the ACLU of Missouri, has already lost time in her bid to collect enough signatures to place the question on the 2024 statewide ballot.
“If the Attorney General had complied with his duty to approve the auditor’s fiscal note summaries in the time prescribed, the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago,” the court said.
“The Attorney General was to have performed that task within 10 days of receiving the fiscal notes and summaries from the Auditor, a period that expired more than three months ago,” the court added.
Bailey, who is running for a full, four-year term in 2024, acknowledged the defeat Thursday.
“We disagree with the court’s decision, as we believe Missourians deserve to know how much this amendment would cost the state, but we will respect the Court’s order,” said Bailey spokeswoman Madeline Sieren.
The ACLU said the decision is a victory for the right to direct democracy.
“At every level of our judicial system, the courts saw the Attorney General’s effort to derail the initiative process for what it was: a deliberate threat to the direct democracy,” said Anthony Rothert, director of Integrated Advocacy at the ACLU of Missouri.
In the lawsuit, Fitzpatrick, a Republican, had argued that Bailey has only a “ministerial” duty to sign off on the fiscal note his office compiles for each proposed constitutional amendment.
In March, Fitzpatrick determined that passage of the amendment would have an estimated cost to state and local governments of at least $51,000 annually. In response, Bailey said the price tag could be $51 billion, including the possibility of losing all federal Medicaid health insurance funding, which is about $12 billion per year.
Fitzpatrick rejected the claim, arguing that submitting an inaccurate fiscal note would violate his duty as state auditor.
The high court agreed.
“This court has often said a ministerial duty is ‘a duty of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed,’” the court ruled in a 20-page order.
Fitzpatrick thanked the court for upholding the ballot initiative process.
“As someone who is ardently pro-life, I will vote against these initiatives if they make it to the ballot. However my personal stance cannot compromise the duty my office has to provide a fair assessment of their cost to the state,” Fitzpatrick said.
Supporters need signatures from 8% of voters in six of the state’s eight congressional districts in order to get the abortion-rights measure on the 2024 ballot.
Further delays, however, could be in the offing.
The ACLU also is suing Secretary of State Jay Ashcroft after he crafted proposed ballot language that the plaintiffs say is misleading and biased.
Ashcroft wants the ballot initiative to ask voters if they want to “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice.”
The lawsuit calls the Ashcroft summary “disinformation” and said “Missourians are entitled to a sufficient and fair summary statement that will allow them to cast an informed vote.”
Missouri Republican lawmakers on Friday, June 24, 2022, effectively banned abortion in Missouri after the U.S. Supreme Court overturned Roe v. Wade.
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