Fitz-James v. Ashcroft

• Court: Missouri Court of Appeals
• Writing for the Court: Thomas N. Chapman, Judge
• Docket Number: WD86595
• Decision Date: 31 October 2023
• Parties: DR. ANNA FITZ-JAMES, Respondent, v. JOHN R. ASHCROFT, MISSOURI SECRETARY OF STATE, Appellant.

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DR. ANNA FITZ-JAMES, Respondent, v. JOHN R. ASHCROFT, MISSOURI SECRETARY OF STATE, Appellant.

No. WD86595

Court of Appeals of Missouri, Western District, Special Division

October 31, 2023

Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

Before: Lisa White Hardwick, Presiding Judge, Edward R Ardini, Jr., Judge, and Thomas N. Chapman, Judge

OPINION

Thomas N. Chapman, Judge

John Ashcroft, the Missouri Secretary of State ("Secretary"), appeals the judgment of the Circuit Court of Cole County finding that the summary statements prepared by the Secretary for six initiative petitions were insufficient and unfair and redrafting the summary statements and certifying the new language. The judgment is affirmed in part and reversed in part. Alternative summary statements are certified to the Secretary.

Background

On March 8, 2023, Dr. Anna Fitz-James submitted six initiative petitions and sample sheets to the Secretary of State. The initiative petitions seek to amend Article I of the Missouri Constitution by adopting a new Section 36. The six petitions are six versions of the proposed new Section 36 to be known as "The Right to Reproductive Freedom Initiative" and are denominated 2024-085, 2024-078 2024-080, 2024-082, 2024-086, and 2024-087.^[1] All of the versions contain subsections 2 and 3 creating a state constitutional right to reproductive freedom:

2. The Government shall not deny or infringe upon a person's fundamental right to reproductive freedom, which is the right to make and carry out decisions about all matters relating to reproductive health care, including but not limited to prenatal care, childbirth, postpartum care birth control, abortion care, miscarriage care, and respectful birthing conditions.

3. The right to reproductive freedom shall not be denied, interfered with, delayed, or otherwise restricted unless the Government demonstrates that such action is justified by a compelling governmental interest achieved by the least restrictive means. Any denial, interference, delay, or restriction of the right to reproductive freedom shall be presumed invalid. For purposes of this Section, a governmental interest is compelling only if it is for the limited purpose and has the limited effect of improving or maintaining the health of a person seeking care, is consistent with widely accepted clinical standards of practice and evidence-based medicine, and does not infringe on that person's autonomous decision-making.

All of the versions also contain a provision prohibiting the Government from penalizing, prosecuting, or subjecting to adverse action any person based on their pregnancy outcomes or because they assist a person in exercising their right to reproductive freedom.

All of the initiatives also contain the following provision (numbered differently in the various initiatives):

The Government shall not discriminate against persons providing or obtaining reproductive health care or assisting another person in doing so.

Five versions provide that "[n]otwithstanding subsection 3 of this Section, the general assembly may enact laws that regulate the provision of abortion" either after fetal viability (2024-085, 2024-086, and 2024-087) or after 24 weeks of gestation (2024-080 and 2024-082) except where a treating health care professional deems in their good faith judgment that an abortion is needed to protect the life or physical or mental health of the pregnant person. In the 24-week provisions (2024-080 and 2024-082), abortion also may not be restricted if it is of a nonviable pregnancy. "Fetal viability" is defined in the applicable versions as "the point in pregnancy when, in good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures."

Two versions of the proposed initiative permit the General Assembly to "enact laws that require a health care professional, before providing an abortion to a minor, obtain consent from a parent or guardian of the minor" with exceptions (2024-085 and 2024-080). Finally, two versions (2024-085 and 2024-087) provide, "Nothing in this Section requires government funding of abortion procedures."

On July 26, 2023, the Secretary of State certified the official ballot titles for the petitions. An official ballot title consists of a summary statement prepared by the Secretary of State and a fiscal note summary prepared by the State Auditor. Boeving v. Kander, 493 S.W.3d 865, 871 (Mo. App. W.D. 2016). For initiative petitions 2024-085, 2024-086, and 2024-087, the summary statements all read:

Do you want the Missouri Constitution 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;

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

• allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and

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

For initiative petitions 2024-080 and 2024-082, the summary statements both read:

Do you want the Missouri Constitution 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;

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

• allow for laws to be enacted regulating abortion procedures after 24 weeks, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and

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

For initiative petition 2024-078, the summary statement reads:

Do you want the Missouri Constitution 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;

• 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?

On May 27, 2023, Fitz-James filed six petitions in the Circuit Court of Cole County challenging the summary statements prepared by the Secretary of State. She alleged that the language of the statements is insufficient and unfair. The circuit court consolidated the six cases.

Following a bench trial on jointly stipulated facts and exhibits, the circuit court entered judgment on September 25, 2023. The circuit court found that certain phrases in the summary statements are either argumentative or do not fairly describe the purpose or probable effect of the initiatives. These phrases are: "dangerous, unregulated, and unrestricted abortions," "from conception to live birth," "without requiring a medical license," "without…potentially being subject to medical malpractice," "nullify longstanding Missouri law," "the right to life," "partial-birth abortion," "including a minor," "end the life," "unborn child," "at any time," "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 circuit court further found that while the proposals will have the greatest immediate impact on abortion, the absence of any reference to reproductive health care beyond abortion is insufficient in that it would cause a voter to believe that abortion is the only health care comprising the initiatives. Finally, it found that the phrasing "require the government not to discriminate" to describe that the initiatives would prohibit government discrimination would likely cause confusion and that such phrasing is ancillary and does not need to be included in the statements.

The circuit court entered judgment in favor of Fitz-James and redrafted the summary statements and certified the new language. For initiative 2024-085, the circuit court certified the following summary statement:

Do you want to amend the Missouri Constitution to:

• establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;

• remove Missouri's ban on abortion;

• allow regulation of reproductive health care to improve or maintain the health of the patient;

• allow abortion to be restricted or banned after Fetal Viability except to protect life or health of the woman;

• allow General Assembly to enact a parental consent requirement for abortion with an alternative authorization procedure; and

• declare government funding of abortion is not required?

For initiative 2024-086, the circuit court certified the same summary statement as in 2024-085 minus the parental consent and government funding bullet points. For initiative 2024-087, ...