The ACLU of Missouri’s efforts to place the state’s new law restricting abortions before the voters for approval may proceed if the Missouri Supreme Court does not take up the matter.
A three-judge panel of the Missouri Court of Appeals Western District unanimously ruled on July 8 that Secretary of State Jay Ashcroft exceeded his authority when he rejected the group’s referendum petition in June, citing constitutional grounds for his decision.
After that ruling, both sides filed motions for rehearing or transfer to the state Supreme Court on July 9. The Western District denied both motions the following day.
The ACLU responded on July 10 by filing an application for transfer with the Supreme Court, seeking a ruling requiring the state to act quickly to certify its petition so it can begin collecting signatures sooner. The court then asked the state for briefing. As of press time on July 12, the court had not ruled on whether it would review the case.
If the case proceeds, Ashcroft would be required to issue ballot language for the referendum. The ACLU then would be able to collect the 100,000 signatures it must obtain by Aug. 28 in order to place the issue on the ballot in 2020.
The group opposes the new abortion law, which prohibits abortions in or after the eighth week of a pregnancy, without exceptions for rape or incest. Gov. Mike Parson signed the bill into law in May.
The Western District ruling came in a suit brought by the ACLU and its legislative and policy director, Sara E. Baker. The ACLU sought declaratory judgment and injunctive relief after Ashcroft denied its petition June 6.
Cole County Circuit Judge Daniel R. Green dismissed the suit, prompting the ACLU’s appeal to the Western District. Within hours of hearing oral arguments from the parties, the panel issued its ruling.
In an opinion written by Judge Cynthia L. Martin, the panel said Ashcroft was limited by state law to review only whether the petition’s form met legal requirements. Judges Thomas H. Newton and Mark D. Pfeiffer concurred.
Citing the importance of time in the case, the panel entered a declaratory judgment in favor of the ACLU and granted the ACLU permanent injunctive relief compelling Ashcroft to immediately withdraw his rejection of the petition and to immediately send written notice to the ACLU approving it.
In a footnote, Martin said the court recognizes that little time may remain for the ACLU to collect signatures if the secretary of state or attorney general take all of the time permitted by law to certify the ballot language.
“That predicament underscores why it is beyond the Secretary of State’s authority under section 116.332 to derail the referendum process by reviewing a sample sheet for anything other than its sufficiency as to form pursuant to section 116.030,” she said.
The ACLU is seeking to overturn House Bill 126, which repealed seven statutes and replaced them with 17 new provisions which regulate abortions. The legislature included an emergency clause with one of the 17 provisions, section 188.028, which requires that both custodians of a minor be notified before a minor may obtain an abortion.
The clause states that the act is “necessary for the immediate preservation of the public health, welfare, peace and safety” and allowed the provision to go into immediate effect upon passage.
When Ashcroft announced his decision on the referendum petition, he said the petition failed to comply with the Missouri Constitution, asserting that the emergency clause provided an exception to the right to a referendum.
In oral arguments on July 8, the ACLU pushed back against that assertion, saying the group did not believe the legislature could insulate itself against a referendum vote through the use of an emergency clause. The ACLU also argued that the clause applied only to one portion of the law, thus allowing a referendum on the other portions not affected by the clause.
Tony Rothert, the ACLU’s legal director, said the organization was pleased with the Western District ruling.
“We think it correctly recognizes that the state cannot thwart the referendum process by rejecting a referendum petition because of the secretary of state’s view that it would be unconstitutional,” he said. “The decision leaves for a later day to decide the core issue of the case — whether the legislature can avoid a referendum altogether.”
Chris Nuelle, a spokesman for the Attorney General’s Office, which represented Ashcroft, declined comment on the matter.
The case is American Civil Liberties Union of Missouri Foundation et al. v. Ashcroft et al., WD82880.