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ACLU files legal challenge to rejection of abortion bill referendum

JEFFERSON CITY, Mo. — Within hours of the Secretary of State’ Office rejecting referendum petitions on a sweeping anti-abortion bill, the decision was challenged in court — with a second lawsuit expected soon.

The ACLU of Missouri filed a lawsuit in Cole County Thursday afternoon contending Jay Ashcroft, Missouri’s Republican secretary of state, acted outside his purview and the law in rejecting the petition filed on its behalf. 

The ACLU is seeking a temporary restraining order, an injunction, and declaratory relief. The case has been assigned to Cole County Judge Daniel Green.

“The people of the State of Missouri cannot be deprived of their fundamental right to referendum HB 126 on the basis that one single provision of HB 126 is alleged to be subject to a purported emergency,” the lawsuit states. The legal challenge also alleges that in analyzing the petition for more than its “form,” the state violated Missouri statute.

Last month, on the first business day after Gov. Mike Parson signed HB 126 into law, Sara Baker submitted a referendum petition on behalf of the ACLU to the Missouri secretary of state, seeking certification for circulation.

Ashcroft announced Thursday morning that he rejected the petition “for failure to comply with the requirements of the Missouri Constitution.” At the same time, he also rejected another similar referendum petition, filed by Lowell Pearson on behalf of GOP megadonor David Humphreys.

Pearson told The Missouri Times he plans on filing a lawsuit as well.

The issue with both petitions, according to Ashcroft, is the emergency clause attached to the bill. The emergency clause resulted in a portion of the bill going into effect immediately after Parson signed it.

The provision in effect is the requirement for both parents to be notified of a minor seeking an abortion.

The vast majority of the provisions — banning abortion at eight weeks, along with “nestled” components to include restrictions at 14, 18, and 20 weeks should a court overturn a portion of the law, and an outright abortion ban if Roe v. Wade is overturned — will go into effect on August 28.

The ACLU is contending the lone provision with the emergency clause does not actually “constitute an emergency subjecting it to immediate passage and precluding it from a referendum.”

Ashcroft told reporters he was not making a judgment on the validity of the emergency clause — only saying with a provision already being in effect, the bill is exempt from a referendum.

“The court clearly states the determination about whether or not an emergency clause is proper or not is a matter for the courts,” said Ashcroft. “It would be inappropriate for me to make a judicial determine like that.”

The lawsuit also challenges the basis of the secretary of state’s analysis.

The ACLU notes the secretary of state’s responsibility in reviewing the submission of a referendum petition is to “review the comments and statements of the attorney general as to form and make a final decision as to the approval or rejection of the form of the petition.”   

Any other review by the state, other than as its form, does not occur until after the signatures are obtained and submitted, according to the lawsuit.  

Should the ACLU prevail in its legal challenge, it would need to gather and submit signatures from 5 percent of legal voters in six of eight congressional districts — at least 100,126 Missourians — by August 28 to put it on the ballot.