The American Civil Liberties Union of Missouri sued Secretary of State Jay Ashcroft Thursday, hours after his announcement rejecting its referendum application to overturn a law that criminalizes abortions after eight weeks of pregnancy.
Ashcroft said the issue is an emergency clause that went into effect immediately when Gov. Mike Parson signed the bill last month. It requires that some minors notify both of their parents before getting an abortion. The clause was approved by two-thirds of the legislature, as required by the state constitution.
The rest of the law, including the eight-week ban, goes on the books Aug. 28.
But the state constitution also says the people’s right to challenge a law by referendum is limited when the measure is “necessary for the immediate preservation of the public peace” and “health or safety.”
Ashcroft said the courts will have to make the final determination.
“The Secretary of State’s Office does not have the ability to decide whether an emergency clause is truly an emergency,” he said.
Following Ashcroft’s announcement, the ACLU of Missouri held to its pronouncement: “We’ll see you in court.”
In the lawsuit, filed in Cole County Circuit Court, the ACLU asked for a temporary restraining order and preliminary injunction while the court decides the legality of Ashcroft’s action.
“Any attempt to deprive the people of the constitutional right to referendum is a sad and cynical ploy, but it is not surprising given that (the bill)‘s entire purpose is to elevate the legislature above constitutional rights,” Tony Rothert, the organization’s action executive director, said in a statement.
It said there was nothing “immediate,” nor “no new public menace” supporting the need for an emergency clause. Before Parson signed the bill last month, Missouri had one-parent consent laws for more than 30 years, according to the suit.
It noted that the Senate handler of the bill, Sen. Andrew Koenig, said in an interview with St. Louis Public Radio: “What we did in the bill is actually preempt that type of situation by putting an emergency clause in there. So there can’t be a referendum.”
“To put it plainly: the ‘situation’ that Senator Koenig wants to ‘preempt’ is Missourians’ exercise of their fundamental right to scrutinize the legislative acts of their elected representatives,” the lawsuit stated.
The lawsuit named Attorney General Eric Schmitt and Auditor Nicole Galloway as defendants, as well. Both are responsible for reviewing referendums before they are approved or rejected by the Secretary of State’s Office.
However, a spokesperson for Galloway’s office said its review, which includes providing a fiscal note for the referendum, was not complete before Ashcroft’s decision was announced. A spokesperson for Schmitt’s office said he could not provide immediate comment.
Ashcroft has also rejected one of the two referendum applications by attorney Lowell Pearson, who represents GOP megadonor and Joplin businessman David Humphreys.
Humphreys, noting the lack of exceptions for victims of rape and incest, had urged Parson to veto the bill and has since backed an effort to overturn the law.
Pearson said he planned to file a lawsuit in Cole County Circuit Court Friday. He noted that there was no case law that showed how a referendum should address a partial emergency clause. Unlike initiative petitions, referendums seeking to overturn laws have only made it to the ballot 27 times.
“This is a mechanism that’s not used often so this lawsuit might give clarification moving forward,” Pearson said.
In a letter sent to Secretary of State’s Office on Wednesday, Pearson argued that case law shows that the power of the public to reject laws by the legislature must be “zealously guarded.”
His letter also took note of Koenig’s comment.
“The use of the word ‘preempt’ is telling, indicating a conscious effort to eliminate the constitutional power of the People,” Pearson wrote.
A third referendum application is still under review. Also submitted by Pearson, it does not challenge portions of the bill that are under an emergency clause.
If the referendum is approved, backers have an Aug. 28 deadline to collect more than 100,000 signatures to place the law on the 2020 ballot for an up-or-down vote once. A “yes” vote would mean the ban becomes law, while a “no” means it doesn’t.
Ashcroft stressed that Thursday’s action was not political. His office did not wait on making a decision, he added.
“We wanted to be very clear and very careful that we did not do anything that would lead to any sort of thought that it was a political decision,” Ashcroft said. “Regardless if you say the sky is blue and the grass is green, someone will find fault.”
The ACLU of Missouri did not seem to think so. It lumped the GOP lawmakers’ action with efforts by Parson and legislature to eliminate abortion in Missouri.
“Secretary of State John Ashcroft is caught up in Missouri politicians’ longing to be the first state in the nation to ban abortion,” Rothert said in a statement. “Predictably, he is trying to deprive Missourians of their right to weigh in on the abortion question with a vote.”