A bill signed Thursday by Missouri Gov. Mike Kehoe generated a lawsuit Friday challenging its constitutionality even as Attorney General Andrew Bailey wasted no time using new powers granted in the law.
The bill changes the deadlines and procedure for challenging the ballot language of measures placed before voters by the General Assembly or by initiative petition. It also allows the ballot summaries to be longer.
But a major focus of legislative debate was the provision of the bill giving the attorney general the power to appeal preliminary injunctions granted in cases where the state or a statewide official is blocked from enforcing a law or statute.
It was inspired by an ongoing abortion-rights lawsuit and included an emergency clause making the power to appeal preliminary injunctions effective immediately. The bill cited the need “to ensure judicial efficiency” as the reason it is “deemed necessary for the immediate preservation of the public health, welfare, peace and safety” of the state.
On Friday, attorney Chuck Hatfield filed a lawsuit in Cole County Circuit Court on behalf of longtime progressive activist Sean Nicholson arguing the bill violates the constitution in six ways. The emergency clause, and the reason it gives for invoking the Constitution’s provision for making laws effective immediately, are not an emergency, Hatfield wrote.
“There is no crisis or emergency which requires immediate or quick legislative action for the preservation of the public peace, property, health, safety, or morals,” Hatfield wrote.
Bailey followed through on the intent of the legislation Thursday by using the newly granted power to challenge two preliminary injunctions issued after voters approved Amendment 3 overturning Missouri’s near-total ban on abortions.
The first preliminary injunction, issued by Jackson County Judge Jerri Zhang in December, blocked state laws that required a 72-hour waiting period for an abortion and a mandate that physicians performing abortions have admitting privileges at nearby hospitals.
The second, issued Feb. 14, stopped enforcement of a licensing requirement for abortion clinics that providers argued was a key obstacle to renewing access to the procedure across the state. Hours later, Planned Parenthood clinics announced they would begin offering abortion services in Missouri.
In a statement issued Thursday, the ACLU of Missouri and the state’s two Planned Parenthood affiliates vowed to fight against the effort to alter the laws governing court cases.
“A majority of Missouri voters passed Amendment 3 to end Missouri’s abortion ban and protect reproductive freedom,” the statement read. “Rather than following the will of the people, the same anti-abortion politicians that fought against Amendment 3 and lost at the ballot box have changed the rules of both the initiative petition and the court procedures so they can try to reinstate Missouri’s abortion ban.”
A spokeswoman for Bailey’s office said in an emailed statement that he filed an appeal to challenge the court’s decision to “eliminate common-sense health and safety standards.
Abortion Action Missouri executive director Mallory Schwarz said in a news release that the bill signed by Kehoe is an admission that abortion rights backers have won at the ballot box and in the courts.
“The governor signing this attack on democracy just shows that the state is power hungry and obsessed with controlling Missourian’s lives, taking away their personal and private decision-making, and inserting itself into their bedrooms and doctors’ offices,” Scharz said.
In the lawsuit, Hatfield wrote that until the passage of the bill signed Thursday, Missouri court procedure did not allow an appeal of preliminary injunctions.
Hatfield wrote that “the grant of the right is one sided, favoring only the attorney general” and violates the state Constitution’s guarantee of equal rights and opportunity.
The power to appeal past preliminary injunctions is also “unconstitutionally retroactive because it is applicable to preliminary injunctions in place prior to the passage.”
The Missouri Constitution forbids ex post facto laws — laws making something a crime after the act — and laws that alter contracts or is retrospective in effect.
The bill’s provisions governing the revision of ballot language is a reaction to the legal fight over the wording for Amendment 3. In 2023, Cole County Circuit Judge Jon Beetem ruled the ballot title written by then-Secretary of State Jay Ashcroft was “argumentative” or unfairly biased and rewrote it. That decision was upheld by the Missouri Western District Court of Appeals.
Under the bill, a ballot title deemed insufficient or unfair would be sent back to the secretary of state for revision. The courts would have to allow three attempts, all under increasingly tight deadlines, before taking over the job.
The bill also moves up the deadline for completing all court challenges from eight weeks before the election to 10 weeks before the election.
Along with creating unconstitutional powers for the attorney general and granting them in an unconstitutional way, Hatfield’s lawsuit alleges the bill was improperly changed to alter its original purpose and that the changes made violate the constitutional requirement that bills address a single subject.
The bill filed by state Sen. Rick Brattin, a Harrisonville Republican, began as “one new section relating to ballot summaries prepared by the general assembly.” It was changed to be “three new sections relating to ballot summaries” in a Senate committee before being passed as “five new sections relating to judicial proceedings.”
One provision allowing ballot titles to have 100 words instead of 50 has nothing to do with judicial proceedings, the lawsuit states.
And the power to appeal preliminary injunctions has nothing to do with ballot summaries prepared by lawmakers, it adds.
No hearings can be set for the lawsuit until notice is served on Bailey and Secretary of State Denny Hoskins, the defendants in the case.
The political battle over abortion, and how the initiative process is used, is also continuing inside and outside the General Assembly.
On April 17, the Missouri House approved a proposed constitutional amendment that would overturn most provisions of Amendment 3, restoring the ban on abortions that was in place starting in 2022 but with new exceptions for medical emergencies, fatal fetal anomalies and for survivors of rape and incest in the first 12 weeks of gestation.
The bill has not been assigned to a state Senate committee.
Lawmakers have tried, and failed, to pass proposals that would change how many signatures must be gathered for initiatives and how majorities are counted for initiative measures that make the ballot.
A group called the Respect Missouri Voters Coalition has filed an initiative proposal to add new protections for initiative measures to the state constitution. Any initiative changing a statute or the constitution could only be altered by lawmakers if 80% of members in both chambers vote for a bill that is then submitted to a statewide vote.
The bill signed Thursday will give far too much power to the secretary of state, Benjamin Singer, co-founder of the Respect Missouri Voters Coalition and CEO of Show Me Integrity, said in a news release.
“Missouri’s citizen initiative process is now dead for anything that the Secretary of State doesn’t like and wants to kill with biased language,” Singer said.
This story was originally published by the Missouri Independent, part of the States Newsroom.
