After Gov. Mike Parson signed an eight-week abortion ban into law, opponents vowed to put the measure up for a statewide vote — similar to a successful effort in 2018 to repeal Missouri’s right-to-work law.
But there could be an obstacle: A clause making one part of the proposal go into effect right away.
Missouri’s Constitution sets up a process to put any piece of legislation signed into law up for a statewide referendum. However, the constitution prohibits referendums for laws that are “necessary for the immediate preservation of the public peace, health or safety.”
“Public peace, health or safety” is boilerplate language usually used in what’s known as “emergency clauses,” which make either an entire law or part of a law go into effect immediately after a governor signs it. In the bill Parson signed last month, there’s an emergency clause for a provision requiring notification to both parents in some circumstances if a minor is seeking an abortion.
For Sen. Andrew Koenig, that should be enough to derail efforts from the American Civil Liberties Union of Missouri and Joplin businessman David Humphreys to put the measure, known as HB 126, up for a referendum.
“What we did in the bill is actually preempt that type of situation by putting an emergency clause in there,” said Koenig, referring to a potential referendum of the legislation he handled in the Senate. “So there can’t be a referendum.”
Maura Browning, a spokeswoman for Secretary of State Jay Ashcroft, said her office is researching the issue.
Not an emergency?
ACLU of Missouri’s legal director and interim Executive Director Tony Rothert said while a referendum is not available for laws that are emergencies, “the bulk of [the abortion bill] did not invoke emergency provisions, and the Legislature cannot steal the right of referendum from the people simply by attaching non-emergency provisions to a piece of legislation with an emergency provision.”
“In any event, courts, not the Legislature, determine whether there is an emergency, and nothing in HB 126 comes close to satisfying the requirements,” Rothert said. “Any attempt to deprive the people of the constitutional right to referendum is a sad and cynical ploy, but it is not surprising given that HB 126 entire purpose is to elevate the Legislature above constitutional rights.”
A 1952 decision known as Inter-City Fire Protection District of Jackson County v. Gambrell found that “a mere declaration by a legislative body that an act which is passed is an emergency measure cannot make it so, but it is for a court in a judicial proceeding to determine whether act is in fact an emergency measure within the meaning of the constitutional provisions."
Back in 1920, opponents of a workers compensation bill with an emergency clause sought to put the measure up for a referendum. A court ultimately ruled there wasn’t a legitimate emergency and allowed the measure to go up for a public vote.
If either the ACLU or the Humphreys referendum were stymied, it doesn’t mean that opponents of the abortion ban couldn’t take the issue to voters. They could seek an initiative petition repealing all or some of the law.
But opponents of the abortion ban may prefer the referendum route, since that process requires Missourians to vote ‘no’ in order to repeal a bill. That may be an easier message to sell than an initiative petition, where people have to vote ‘yes’ in order to repeal HB 126.
Perhaps the most politically notable development from the bid to repeal HB 126 is the involvement of Humphreys, who for years has been one of the Missouri Republican Party’s biggest donors.
Humphreys urged Parson to veto the bill, honing in on the lack of exceptions for women who become pregnant because of rape or incest. He said he has to believe “that the politicians in Jeff City that voted for this bill would themselves support their wives or daughters’ right to choose if their loved ones were raped.”
He sent out another statement last week saying that he supported efforts to repeal HB 126, adding he invites “other like-minded people to join in the committee’s efforts and with financial and personal support of its signature gathering and campaign.”
Koenig, who received financial backing from Humphreys in his 2016 bid for Senate, said the statement was surprising — but not enough to shift his opinion on the matter.
“I think everybody knew that he’s more libertarian,” said Koenig, R-Manchester. “Though I would argue with libertarians that protecting life is a libertarian position to have. But most libertarians would say that they’re pro-choice. And so, I was surprised by how strong his language was. But there was no doubt in my mind that he wasn’t going to change anybody’s mind on it.”
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