Updated on 3:35 p.m. on Wednesday with rejection of transfer.
A Missouri appeals court ruled Monday that a referendum aimed at overturning a ban on abortion after eight weeks of pregnancy can proceed.
The court reversed Secretary of State Jay Ashcroft’s rejection of the referendum.
While the ruling revives an effort from the American Civil Liberties Union of Missouri to scrap the abortion ban, supporters won’t have a lot of time to gather roughly 100,000 signatures. And there could be more legal fights to come about whether a provision that goes into effect right away will derail the referendum in the future.
Ashcroft rejected the referendum from the ACLU, as well as two other similar ones, because part of the abortion law went into effect right away under what’s known as an emergency clause. But the Western District Court of Appeals ruled that Ashcroft didn’t have the authority to make that decision.
Ashcroft and Attorney General Eric Schmitt moved Tuesday to either have a rehearing of the decision — or transfer the case to the Missouri Supreme Court. But the court of appeals rejected that request on Wednesday. Ashcroft and Schmitt can still apply directly to the Missouri Supreme Court.
Tony Rothert of the ACLU said his group was pleased with the judges’ decision but concerned about having enough time to gather signatures.
“It certainly establishes the limitations on the secretary of state’s ability to derail a referendum,” Rothert said. “Going forward how it will affect our ability to gather signatures we have not yet evaluated.”
What Rothert was referring to was a footnote in the decision denying the ACLU’s request to have the referendum’s ballot title certified by July 18. Opponents of the abortion ban can’t start gathering signatures without a ballot title. And getting the necessary signatures in six of Missouri’s eight congressional districts usually takes a few months — as was the case when foes of right to work had roughly six months to pursue their referendum.
The deadline to gather signatures is Aug. 28, when the rest of the abortion measure goes into effect.
“We are evaluating how long he can take, but there is no reason he cannot have this done on or before July 18 if his goal is to do his job properly rather than thwart the referendum,” Rothert said.
The three-judge panel, which came to its decision unanimously, did not say whether the emergency clause would make the referendum unconstitutional. Rothert said that leaves open the possibility that Ashcroft could reject the referendum after signatures are submitted.
“Even if he cannot reject it then, someone else could sue at that point to try to keep it off the ballot and raise the constitutional question that was underlying today’s case — but was not addressed today,” Rothert said. “That issue will have to be litigated at some point before this measure can go on the ballot. But not today.”
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