The ACLU-Missouri wants the Missouri Supreme Court to order Secretary of State Jay Ashcroft and Attorney General Eric Schmitt to finish their work certifying a referendum petition on the state's new abortion law by next Thursday, so the petition can be circulated for signatures.
"Failure to do so will reward the Secretary of State's unlawful effort to deny the fundamental right of referendum by providing Appellants with no meaningful opportunity to collect signatures before the deadline imposed by the constitution — Aug. 28, 2019," the ACLU told the high court in its "emergency motion of interim relief."
"The absence of relief from this Court will also cause the important issues raised in this case to forever escape review."
However, late Thursday afternoon, Solicitor General D. John Sauer argued, in a 27-page brief: "The ACLU has also failed to provide any evidence of its claims of irreparable injury, as required to support its extraordinary request for a mandatory injunction pending appeal.
"The State respectfully disagrees with the holding of the Court of Appeals on the merits and reserves the right to seek review of that holding. But the ACLU's transfer application provides no persuasive reason for this Court to revisit the merits of this case, and the State respectfully requests that this Court deny the ACLU's transfer application promptly."
The ACLU's petition to the Supreme Court was filed Wednesday, just two days after a three-judge Missouri Court of Appeals panel in Kansas City ruled Ashcroft overstepped his authority last month, when he said he had to reject the petition because one part of Missouri's controversial abortion law had an emergency clause, that made that section effective as soon as Gov. Mike Parson signed the law May 24.
Since the Constitution states a referendum vote cannot be held on "laws necessary for the immediate preservation of the public peace, health or safety," Ashcroft said June 6 he couldn't approve the referendum petition because of the emergency clause covering that one section of the law.
However, the appeals court ruled Monday, "The Secretary of State rejected the sample sheet on constitutional grounds at a point when (his) exclusive authority was limited by (state law) to review of the (petition) sample sheet for sufficiency as to form."
Sauer, writing for the secretary of state's and attorney general's offices, reminded the high court that state law requires the secretary of state to "examine the petition to determine whether it complies with the Constitution of Missouri and with this chapter."
In a Thursday afternoon interview, Ashcroft told the News Tribune — as he has said before — the emergency clause lawmakers put on one part of the abortion bill effectively prevented him from allowing a referendum to be held on any part of the bill.
"I have to follow the law," Ashcroft said. "What this comes down to is, the Legislature put an emergency clause on the bill. It's not my place to say, 'That's what the Constitution says, but we're going to do something else.'"
The abortion law, House Bill 126, which its supporters call the "Missouri Stands for the Unborn Act," blocks abortions in Missouri after about eight weeks of pregnancy — a time when, supporters said, doctors first can hear a developing baby's heartbeat, but opponents said occurs before many women know they're pregnant.
The measure allows for an abortion only for the health of the mother, and does not allow any abortions for women who want to end a pregnancy caused by rape or incest.
The emergency clause covered only a section of the law requiring a woman younger than 18 seeking to get an abortion to have the approval of both parents or guardians, not just one.
While the Supreme Court has given the case a number and accepted initial briefs, it has not said if it will take the case. If it rejects the case, then the appeals court ruling stands.
If the Supreme Court takes the case, then it will be ruling on Cole County Circuit Judge Dan Green's ruling last month that the ACLU didn't file the right kind of lawsuit in the first place.