Jefferson City lawyer Lowell Pearson plans to sue Secretary of State Jay Ashcroft over his decision, announced Thursday, rejecting two petitions seeking a statewide vote on the "Missouri Stands for the Unborn Act," an anti-abortion bill (House Bill 126) that seeks to prohibit abortions at eight weeks of pregnancy — when doctors presumably can hear the baby's heartbeat for the first time.
And ACLU-Missouri, which also had a proposed referendum petition rejected by Ashcroft, did file a lawsuit Thursday afternoon, arguing Ashcroft's decision "violated Plaintiffs' fundamental constitutional right to call a referendum by citizen petition as to (House Bill) 126 (and) plaintiffs have no alternative remedy to vindicate their fundamental constitutional right to call a referendum" than by filing their lawsuit.
Pearson represents Joplin businessman David Humphreys — a long-time supporter of Republicans and conservative causes — who objected to the abortion bill because it did not include an exception for pregnancies resulting from rape or incest.
In both petitions, Ashcroft told reporters Thursday morning: "House Bill 126 does have what is called an 'emergency clause,' that was duly passed according to the Constitution, with votes of a two-thirds majority in each chamber of the Legislature."
That means a portion of the new law — in this case, a requirement that a minor seeking an abortion notify both of her parents or guardians, rather than the current requirement to notify only one parent or guardian — went into effect as soon as Gov. Mike Parson signed the bill into law last month.
Ashcroft acknowledged a petition for a referendum seeking a statewide vote on a new law is a constitutional right.
However, he added, the state Constitution and previous Supreme Court rulings have said that right doesn't extend to laws that have already gone into effect.
And, "since the Legislature has made the determination in their language that this law needed to be enacted — it was deemed necessary 'for the immediate preservation of the public health, welfare, peace and safety' and was hereby declared to be an emergency act within the meaning of the (state) Constitution," Ashcroft explained, "we have no other avenue to reject Referendum 1 and Referendum 2 for failure to comply with the requirements of the Missouri Constitution."
Pearson disagrees, and sent Ashcroft a memo Wednesday urging him not to reject the referendum petition.
"It is not within the powers of the Secretary of State to reject these referenda on the basis of the partial emergency clause," Pearson wrote in his three-page memo. "In Attorney General Opinion No. 131 (April 15, 1971), Attorney General Danforth opined on an emergency clause.
"That opinion made clear: 'Whether the legislature has declared in the act itself facts which (are) true, constitute an emergency, and whether such facts as stated are t/rue is a matter for the courts to decide. The declaration made by the legislature in the Act is not conclusive.'"
In his statement reacting to Ashcroft's decision, ACLU legal director Tony Rothert said: "Denying the people their constitutional right to referendum is a sad and cynical ploy, but it is not surprising given that HB126's entire purpose is to elevate the legislature above constitutional rights.
"This cowardly move by the Secretary of State proves that Missouri's anti-abortion zealots understand that they're acting against the wishes of the majority. They hope to short-circuit the people's vote because they know they will lose if the people get their say."
The ACLU lawsuit names Ashcroft, Attorney General Eric Schmitt and State Auditor Nicole Galloway as defendants — all in their official capacity.
However, Ashcroft told reporters only his office made the decision to reject the petition proposals, and his staff still is looking at a third proposed petition, also filed by Pearson, and hopes to determine by next Friday if that petition can be circulated for signatures.
"The requirement to make this decision falls solely on the secretary of state's office," he said. "We wanted to be very clear and very careful, that we didn't do anything that would lead to any sort of thought that it was a political decision."
He acknowledged some would call his decision political, anyway.
State House Minority Leader Crystal Quade, D-Springfield, said in a news release: "(The) refusal by Secretary of State Jay Ashcroft to do his job further demonstrates the disregard Republican elected officials have for the constitutional rights of Missourians.
"First, the governor signs a law to force people to remain pregnant against their will, even in cases of rape and incest.
"Now, the secretary of state is blocking Missouri voters from the opportunity to reject this harmful and unconstitutional law."
And Mallory Schwarz, executive director of the group NARAL Pro-Choice Missouri, said in a statement: "A majority of Missourians — seven in 10 — support access to safe, legal abortion.
"Ashcroft's decision to reject a referendum that would bring House Bill 126 up for a vote is a calculated attempt to silence the pro-choice majority."
However, Ashcroft told reporters the Constitution allowed him no other choice.
"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."