Fitz-James v. Ashcroft

In 2019, Missouri enacted HB 126, which banned nearly all abortions in the state except for medical emergencies. The law contained a clause stating the abortion ban would become effective when the Attorney General, Governor, or state legislature determined that the United States Supreme Court had overturned Roe v. Wade, allowing states to ban abortion.  

In 2022, just after the US Supreme Court issued its decision in Dobbs, eliminating federal constitutional protections for abortion and allowing states to ban abortion, then-Missouri Attorney General Eric Schmitt signed a legal opinion confirming the end of Roe v. Wade, allowing the state's abortion ban to go into effect. The Governor of Missouri also signed a proclamation announcing the ban was in effect. Under the law, nearly all abortions are banned with no exceptions for rape or incest. The sole exception is for medical emergencies.  

In 2023, Dr. Anna Fitz-James proposed six ballot initiatives to protect reproductive rights by amending the Missouri state Constitution. To appear on the ballot, the initiatives must each receive over 171,592 signatures on petitions by May 2024. 

In Missouri, ballot initiatives are a right protected by statute. To place a ballot initiative on the ballot, a citizen goes through the following steps: 

1. First, a citizen submits a proposed petition to the Secretary of State. The petition describes the proposed constitutional amendment or statute, and voters sign it to indicate their desire for the initiative to be placed upon the ballot and voted on by the people of Missouri. 
2. The Secretary of State sends a copy of the proposed petition to the Attorney General and State Auditor.  
3. Then, the petition is posted on the Secretary of State’s website for a public comment period.  
4. The Attorney General reviews the proposed petition and sends their comments to the Secretary of State. The state auditor’s office also prepares a fiscal note and fiscal note summary detailing the proposed initiative’s financial effect.   
5. The Secretary of State decides whether to approve or reject the petition. 
6. If the petition is approved, the Secretary of State drafts a proposed summary statement of the ballot initiative and sends it to the Attorney General for review.  
7. The Attorney General decides whether to approve or reject the fiscal note and fiscal note summary and reviews the summary statement to approve it.  
8. If the fiscal note summary and fiscal note are approved, the Secretary of State certifies the official ballot title, which contains the summary statement. The official ballot title, including the summary statement, is posted on the Secretary of State’s website.  

According to Missouri law, summary statements must be a “concise statement not exceeding one hundred words” and “shall be in the form of a question using language that is neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” These requirements were further clarified by the Missouri supreme court, when the court held that the language of summary statements must “state the consequences of the initiative without bias, prejudice, deception, or favoritism” and “fairly and impartially summarize the purposes of the measure so that voters will not be deceived or misled.”  

However, the Secretary drafted summary statements describing several of the petitions as follows:  

"Do you want to amend 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? 

State governmental entities estimate no costs or savings, but unknown impact. Local governmental entities estimate costs of at least $51,000 annually in reduced tax revenues. Opponents estimate a potentially significant loss to state revenue."

In response, on May 27, 2023, Dr. Fitz-James filed six lawsuits, one for each initiative, against the Secretary of State in the Circuit Court of Cole County. On August 7, 2023, the court consolidated all six cases into a single case. Fitz-James argued the Secretary’s summaries were unfair and legally insufficient under state law and prevented voters from making informed decisions about the petitions.  

The League of Women Voters of Missouri filed an amicus brief supporting Dr. Fitz-James on August 8th, 2023. The League argued the court should reject the Secretary’s statement and adopt an accurate and fair revised statement, writing, “It is difficult to imagine a summary statement more unfair, distorted, misleading, and argumentative.” The League proposed amended summary statement language for the court that was not argumentative or misleading. It suggested voters be asked if the Missouri Constitution should be amended to “protect the fundamental right to make reproductive health care decisions,” “authorize the legislature to enact laws restricting abortion,” and “prohibit prosecution for exercising or assisting another in exercising the right to make reproductive health care decisions.” 

The Missouri Circuit Court agreed with Fitz-James and the League, ruling on September 25, 2023, that the Secretary’s statement was “problematic in that they are either argumentative or do not fairly describe the purposes or probable effect of the initiative.” The court’s opinion stated that under §116.190, Fitz-James was “entitled to different summary statements — one that will provide voters with enough information about the subject and purpose of the initiative to allow them to make an informed decision whether to investigate further.”  

The Court’s opinion rewrote the summary statements to ask voters if they wanted to, among other changes:  

• “establish a right to make decisions about reproductive healthcare,” 

• “remove Missouri’s ban on abortion,” 

• “allow regulation of reproductive health care,” and  

• “allow abortion to be restricted or banned after 24 weeks except to protect the life or health of the woman.”  

On September 25, 2023, the Secretary appealed the judgement to the Missouri Court of Appeals. The Secretary argued the court erred by “writing entirely new summary statement language instead of performing minimal revisions to any language deemed unfair and insufficient.”   

On October 31, 2023, the Missouri Court of Appeals Western District affirmed the lower court’s re-written summary statements, with two exceptions. The Court of Appeals agreed that the Secretary’s summary statements did not “fairly describe the purposes and probable effects of the initiatives” and are “replete with politically partisan language.” However, the Court of Appeals ruled that the Circuit Court erred in “its refusal to certify language that addressed the nondiscrimination provisions in each of the initiatives” and in not including language showing that the initiatives plan to “[r]emove Missouri’s ban on abortion at any stage of gestation.”  

The Court of Appeals then edited the summary statements to reflect the two errors by the Circuit Court and certified the revised summaries for publication by the Secretary of State.  

The League of Women Voters of Missouri was represented in this case by Wolff Law, LLC, McDonnell Appeals LLC, LMW Law LLC, and Bridgette Dunlap.