Cole County Circuit Judge Dan Green will hear arguments Tuesday afternoon on requests for a temporary restraining order and a permanent injunction, challenging his decision to reject two petitions seeking a statewide referendum on Missouri's newest abortion restrictions bill.
The bill/new law
Lawmakers passed House Bill 126 on May 17 - the Legislature's final day - and Gov. Mike Parson signed it a week later.
Supporters call the new law the "Missouri Stands for the Unborn Act."
Among its provisions, it would prohibit abortions after eight weeks of pregnancy, when some doctors say they first can hear an unborn baby's heart beat.
Should the courts overturn that language, the new law has some fallback provisions, blocking abortions in the state after 14, 18 or 20 weeks, based on subsequent court rulings.
Abortions have been legal in the United States since January 1973, when the U.S. Supreme Court - in a 5-4 ruling in a case known as Roe v. Wade - said women have a right to privacy, including a right to an abortion, during the first two trimesters of their usually 40-week pregnancies.
The new Missouri law would ban all abortions in the state if the current Supreme Court overturns its Roe v. Wade ruling.
Missouri's new law contains only one exception, allowing an abortion to save the mother's life or health - but the doctor performing the abortion must be able to show why the procedure was needed.
Otherwise, the law makes performing an abortion a Class B felony, which could result in the doctor's losing his or her license to practice medicine, and could lead to a prison term of up to 15 years.
There are no exceptions for women whose pregnancies resulted from rape or incest - exceptions that have been allowed in previous laws and in other states.
Except for one section, which mostly involves adding a requirement that someone under 18 who's seeking an abortion must get consent from both parents or guardians, not just the one parent/guardian required under current law, the new law's provisions don't become part of the state's laws until Aug. 28.
The petitions
Three different petitions were filed with Secretary of State Jay Ashcroft's office last month, seeking a statewide referendum to block implementation of the new law.
One petition was filed by Sara Baker for the ACLU, which opposes the entire new law.
A second petition was filed by Joplin businessman David Humphreys - a longtime financial supporter of Republicans and their conservative causes - because he objects to the lack of an exception for rape and incest.
Last Thursday, Ashcroft announced he was required to reject both of those petitions, because the new law contains an "emergency clause" for that one section about parental/guardian notification, making that section go into effect as soon as Parson signed the bill last month.
While Missouri's Constitution includes a section that says, "The people reserve power to approve or reject by referendum any act of the general assembly, except as hereinafter provided," a nearby section says: "A referendum may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety )"
Ashcroft said Thursday he had to reject the two petitions because of the emergency clause in the new law, telling reporters: "We have no other avenue (but) to reject Referendum 1 and Referendum 2 for failure to comply with the requirements of the Missouri Constitution."
Ashcroft said Thursday his staff still was reviewing a third petition and had not yet determined if it had the same legal issues he cited for the first two.
He also said only the secretary of state's office made the rejection decision - even though state law requires the attorney general and the state auditor to review proposed petitions, as well.
The lawsuits
Within hours of Ashcroft's Thursday morning announcement, the ACLU filed its lawsuit challenging Ashcroft's ruling.
"There is no real or existing danger addressed by any provision in HB126, including the repeal and replacement of (the parental notification) section that makes the use of the emergency clause appropriate," ACLU Legal Director Tony Rothert wrote as part of the lawsuit.
On Friday afternoon, Jefferson City lawyer Lowell Pearson filed a second lawsuit, on behalf of Humphreys and the separate "Committee to Protect the Rights of Victims of Rape & Incest," arguing: "The Missouri Legislature has invoked and included the emergency clause for the sole reason of preempting a referendum of House Bill 126, not because of an actual immediate need to preserve the public peace, health or safety."
The two lawsuits are not copies of each other, but they raise similar arguments.
Both cited a June 3 St. Louis Public Radio story that quoted state Sen. Andrew Koenig, R-Manchester, saying: "What we did in the bill is actually preempt that type of (petition) situation by putting an emergency clause in there. So there can't be a referendum."
Ashcroft, who is an attorney, said Missouri Supreme Court rulings in 1920 and 1952 both supported his argument that he had to reject the petitions.
"The Constitution does not allow a matter to be referred to the people, if it meets the criteria that were involved in that emergency clause," Ashcroft said.
But, in the ACLU's "Suggestions in Support" of their motion for a restraining order and permanent injunction, Rothert cited the 1920 Westhues v. Sullivan case and wrote: "The right [of referendum] is not only constitutional, but one of vital importance and of large proportions."
Rothert also argued: "It has long been established that the courts - not the General Assembly and surely not the head of any executive agency - have the exclusive power and duty to determine whether a newly enacted law addresses such 'a real or existing danger' - such a 'present impelling necessity' - that it may appropriately be considered an emergency law and thereby be insulated from the people's referendum power."
And, again quoting the 1920 Westhues case, Rothert added: "The broad position is taken that . the Legislature can foreclose the constitutional right of referendum by simply tacking on and passing an emergency clause. This idea is not sound ."
Ashcroft said his position was supported by a 1971 opinion by then-Attorney General John Danforth.
Although AG's opinions don't have the force of law that court rulings do, Pearson nevertheless said Ashcroft misunderstood that 1971 opinion.
He told Ashcroft in a letter last week, before filing the lawsuit: "It is not within the powers of the Secretary of State to reject these referenda on the basis of the partial emergency clause.
"Just as the courts must 'zealously guard' that (referendum right), so must the executive branch and its elected officials.
"Respectfully, I submit that the Secretary has no authority to reject the referendum as to form based on the emergency clause."
Both lawsuits ask the court to "issue a temporary restraining order, preliminary injunction, and permanent injunction prohibiting Defendants and anyone acting in concert with them from rejecting Plaintiffs' Referendum Petition on the basis that one provision of House Bill 126 is subject to an emergency clause, and requiring that Defendant Ashcroft approve the Referendum Petition form, prepare a summary statement, and certify the official ballot title."
Attorney General Eric Schmitt and State Auditor Nicole Galloway also are defendants in both lawsuits, which ask the court to order them to finish the jobs state law requires them to do when a petition is filed, even though Ashcroft's announcement Thursday blocked them from doing so.
Galloway's office said, in a statement issued Friday: "Auditor Galloway has consistently expressed a deep concern about efforts to stifle the voice of the people on ballot initiatives.
"She disagrees with this latest attempt (by Ashcroft) to limit the power of Missourians to have their voices heard (and) is fighting to uphold citizens' constitutional rights to hold Jefferson City accountable through the referendum process."