Missouri Supreme Court orders AG Bailey to stand down in fight over abortion costs

Supreme Court judges unanimously affirmed a lower court’s decision that Attorney General Andrew Bailey must approve the cost estimate provided by the auditor, despite Bailey’s insistence that the cost to taxpayers of restoring abortion rights could be as much as a million times higher than what the auditor found.

Because Bailey refused to approve Republican Auditor Scott Fitzpatrick’s cost estimate, the secretary of state has not been able to give the amendment his stamp of approval that is needed for supporters to begin gathering voter signatures to put it on the ballot in 2024.

In Thursday’s Supreme Court order, judges found that Bailey’s stonewalling meant plaintiff Anna Fitz-James, who was represented by the ACLU of Missouri, lost out on nearly 100 days she could have been collecting signatures.

“Until the official ballot title is certified – a critical step being held up solely by the Attorney General’s unjustified refusal to act – Fitz-James cannot challenge that title in circuit court or circulate her petitions,” judges wrote. “Fitz-James’s constitutional right of initiative petition is being obstructed, and the deadline for submitting signed petitions draws nearer every day.”

The Supreme Court’s order means the amendment can now move forward in the process.

“We disagree with the Court’s decision, as we believe Missourians deserve to know how much this amendment would cost the state,” attorney general’s office spokeswoman Madeline Sieren said. “But we will respect the Court’s order.”

The proposed amendment would enshrine in the constitution the individual right to make decisions about abortion, childbirth and birth control.

Abortion-rights supporters proposed the amendment after the state banned nearly all abortions when the U.S. Supreme Court overturned Roe v. Wade last summer. The state now allows exceptions for medical emergencies, but not for cases of rape or incest.

Fitzpatrick’s office in March found that the proposal would have no known impact on state funds and an estimated cost of at least $51,000 annually in reduced local tax revenues, although “opponents estimate a potentially significant loss to state revenue.”

Bailey said that the cost estimate was so low it would bias voters and told Fitzpatrick to change it. He argued the state could lose $12.5 billion in Medicaid funding and $51 billion in annual tax revenue because of fewer births.

Fitzpatrick refused to change his estimate.

“As much as I would prefer to be able to say this (initiative petition) would result in a loss to the state of Missouri of $12.5 billion in federal funds, it wouldn’t,” Fitzpatrick wrote in an April 21 letter to Bailey. “To submit a fiscal note summary that I know contains inaccurate information would violate my duty as State Auditor to produce an accurate fiscal note summary.”