Missouri S. Ct. Requires State AG to Certify Reproductive Rights Initiative Ballot Language

Prof. Howard Friedman (Religion Clause) reports (some punctuation revised):

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case.

State Attorney General Andrew Bailey—a gubernatorial appointee in Missouri— contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate. Bailey, an abortion opponent, contended that, if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

From the opinion:

This case is not about the substance of Fitz-James's proposed initiatives petitions, nor is it about the fiscal impact of those proposals. Rather, this case is about which state official is authorized to estimate and summarize that fiscal impact. Section 116.175 unequivocally answers this question. It is the Auditor, and not the Attorney General, who bears this responsibility. The Attorney General's narrow authority to approve the "legal content and form" of the fiscal note summaries cannot be used as a means of usurping the Auditor's broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary….

The Attorney General, nevertheless, characterizes his claim as challenging the "legal content and form" of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure. This characterization is misleading. The Attorney General nowhere identifies any of the Auditor's language the Attorney General claims is argumentative or prejudicial. Instead, he claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds….

This Court has often repeated the importance of the right to initiative enshrined in the Missouri Constitution:

Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from who all constitutional authority is derived, have reserved the "power to propose and enact or reject laws and amendments to the Constitution."

For more than 40 years, this Court has noted "that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights" and that "[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities." If technical formalities cannot stand in the way, a failure to perform a clear and unequivocal duty must not be allowed to do so either. If the Attorney General had complied with his duty to approve the Auditor's fiscal note summaries in the time prescribed by section 116.175.4, the Secretary would have certified the official ballot titles for [the] initiative petitions nearly 100 days ago….

Comments

[Dr. Ed 2]

And yet, 20 years ago when Massachusetts had initiative petitions to eliminate gay marriage, the outcome was the opposite and the people never got a chance to vote on it.

[Rossami]

Different state with a different state constitution. Not sure why you'd find the outcome difference surprising.

[BravoCharlieDelta]

Correct. Mass has no right to initiative written in their constitution.

[Magister]

You'd think anti-abortionists would have a little confidence that voters in Missouri would actually agree with them.

[LawTalkingGuy]

After Kansas and Kentucky voted down anti-abortion measures I'm not surprised they don't have confidence.

Ohio is more or less deep red now, but the GOP there has such little confidence in defeating an abortion rights amendment that they rushed through a special election they hope will have low turnout to change the constitutional amendment process to prevent its passage in November.

[Krychek_2]

If only Texas had ballot initiatives, I’ll bet abortion rights would pass even there.

This is just another example of the contempt the right has for democracy. They know that their position on abortion is wildly unpopular, even in red states. They don’t care. They’ll pull whatever political stunts they need to pull to try to keep it illegal. And it may well cost them the White House in 2024.

The Republican Supreme Court's overturning Roe v. Wade may turn out to be the biggest example of unintended consequences since DeSantis went after Disney.

[DaveM]

Nothing says "contempt for democracy" like demanding the public right to vote on an initiative be actually enforced, eh?

I believe that's called motivated reasoning.

[David Nieporent]

This is just another example of the contempt the right has for democracy. They know that their position on abortion is wildly unpopular, even in red states.

The right does have contempt for democracy, but I'm not sure that liberals' "The courts should not allow the public to democratically weigh in on the subject" position exactly expresses a love of democracy either.

[Rev. Arthur L. Kirkland]

Religion Clause?

Did this right-wing hayseed claim he was refraining from doing his job because the Lord God Of The Bible, Sweet Infant Eight-Pound Six-Ounce Jesus spoke to his heart and commanded him to disregard his duties?

[Dr. Ed 2]

You know, Kirkland, there was a time when you'd be executed for writing that...

[Snorkle]

Idle threats are boring. Go join a gang like the PBs or be quiet and keep hanging at your mom’s house.

[BravoCharlieDelta]

He's a 1776 American not a Fed Stooge.

[bernard11]

And you'd be cheering the executioner on.

[Rev. Arthur L. Kirkland]

I hope you enjoy the taste of the soles of the shoes of your betters (the modern liberal-libertarian American mainstream, winners of the culture war), Dr. Ed.

You and all of the other bigoted, obsolete right-wing. Get used to it, and open wider, clingers. Being the culture war's roadkill has consequences.

[DaveM]

Rev, I fed your post to ChatGPT as a prompt. Here is its reply:

“As an AI language model, I don’t have feelings or personal experiences, so I don’t taste anything, and I don’t have “betters” or any political leanings. My purpose is to provide helpful and respectful information to all users regardless of their beliefs or opinions.

It’s essential to engage in civil and constructive discussions about differing viewpoints. Resorting to insults or derogatory language doesn’t contribute to productive conversations. If you have any specific questions or topics you’d like to discuss, feel free to ask, and I’ll be happy to assist.”

In other words:

1. You don’t have anything to contribute to productive conversations.
2. You also don’t have anything specific to discuss.
3. You aren’t respectful.

Is that your idea of being a “winner” in the culture wars? Well. Even the machine models can tell what you really are.

[Rev. Arthur L. Kirkland]

Ask about the future of right-wing positions (Republican racism, conservative gay-bashing, anti-abortion absolutism, old-timey misogyny, downscale xenophobia, half-educated Islamophobia, chanting antisemitism, gun nuttery, and the like).

Let us know the predictions concerning how many conservative preferences are going to survive the culture war (and how many are going to get obliterated by the tide of modern American progress).

(Did you ask about the right-wing stylings of Dr. Ed, Josh Blackman, BCD, and the other prominent right-wingers of the Volokh Conspiracy? Did you ask about this blog's habitual launching of vile racial slurs?

I didn't think so. Carry on, clingers.)

[loki13]

Ouch. Having read the opinion, that wasn’t even remotely close. Two things stood out-

As a purely legal matter … if your state Attorney General is doing that … you have to wonder if your state AG understands the law (or, worse, understands the law and is just choosing to ignore it).

Second, while it wasn’t dispositive to the Court’s ruling, it was … instructive that the Auditor solicited numerous state agencies for feedback, INCLUDING THE AG’S OFFICE, and received none. For the AG to turn around and try this is quite the exercise in chutzpah.

“Yer honor, I know I have no right to argue with the numbers of the auditor. But my point is, the numbers are wrong. Admittedly, I didn’t bother responding to the auditor when he asked my office for numbers, but that’s only because of reasons!”

[Michael Masinter]

As the linked article notes, litigation continues over the proposed ballot summary drafted by the state's attorney general, language that misrepresents the proposed amendment and is written to discourage anyone from voting for it. Ashcroft's ballot summary includes:

• Allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;

• Nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;

• Require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding; and

• Prohibit any municipality, city, town, village, district, authority, public subdivision, or public corporation having the power to tax or regulate or the state of Missouri from regulating abortion procedures?”

The litigation proposes a very different ballot summary:

“Do you want to amend the Missouri Constitution to:

• Establish the right to reproductive freedom that includes the right to make decisions about reproductive health care, including prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care, and respectful birthing conditions;

• Allow the General Assembly to regulate abortion only if for the health of an individual seeking care, based on accepted standards of care and evidence-based medicine;

• Prohibit criminalization for exercising the right to reproductive freedom; and

• Prevent the government from discriminating against persons providing or obtaining reproductive health care?”

Stay tuned.

[Dr. Ed 2]

I find both sets of language equally offensive.

"Prevent the government from discriminating against persons providing or obtaining reproductive health care?"

The government INHERENTLY does this -- it requires the providers to have a medical license of some sort, while Joe Sixpack doesn't have to have one. And it might refuse to let a woman who has just had an abortion enter a marathon an hour later. Etc.

[Sidney r finkel]

Since when does the Missouri AG have to adhere to the law? If he has a sincere religious belief that abortion is murder and that those who participate in it, including the women, her family, her medical providers and anyone else who knows her should, regardless of the law, be put to death then his wishes stand. Otherwise his free exercise rights are being denied under the Constitution.

[Daddyhill]

Turns out, I guess, that "pro-life" actually means "pro-money". Billions of money in this case. That's the ploy the Missouri AG seems to be using in attempting to undermine his state's citizens' initiative/petition rights. He's saying, if I read this correctly, that underestimating the loss of future--repeat for emphasis, future--state revenue could prejudice voters in favor of reproductive rights initiatives. Silly me, I thought being anti-reproductive rights had to do with science and/or morality and/or religion. Just following the money does sort of simplify matters, doesn't it?

[The Turtle Dove]

Inter-branch Mandamus: the carpenter's shim of the separation of powers.

Like the drunken coachman, it claims to run, but in truth it sometimes walks very, very slowly.

Mr. D.

[Dr. Ed 2]

They are just playing by the same rules that the Dems are -- lying and fabricating facts. Hey, police your own side first...

[DaveM]

No, I'd like to hear them argue the point. Let the facts speak for themselves, it's not necessary to prejudge.

[Rossami]

You know, I just knew someone was going to inject partisanship into this thread and completely ignore that the Missouri Auditor (who is on the other side of the argument) is also a Republican.

[shawn_dude]

Those tax revenues assume the children born will a) stay in Missouri and b) make enough money to pay taxes.

[bernard11]

The Medicaid argument is particularly stupid.

Medicaid pays for medical treatment. It's not free money for the state. If the state "loses" $12.5B in Medicaid that means that the money wasn't needed to cover births.

It's like saying being healthy last year caused you to lose a lot of insurance reimbursements you would have gotten had you been sick.

[Nige]

So you're admitting your side lies and fabricates facts.