JEFFERSON CITY — Missouri’s top election chief Tuesday rejected a third proposal seeking to allow voters to weigh in on the state’s tough new abortion law.
Citing a similar argument to one he made when rejecting two previous referendum requests last week, Secretary of State Jay Ashcroft said the fact that one part of the abortion law is already in effect bars the law from being put before voters in 2020.
The decision came just minutes after a hearing on the two other questions ended in a Cole County courtroom without any decision by Circuit Judge Daniel Green on whether Ashcroft’s decision should be overruled.
Green wants opponents of the law to submit a new request for relief after he found technical problems with their argument. The next hearing on the matter is Monday.
The action came a day after St. Louis Circuit Judge Michael Stelzer granted Planned Parenthood of St. Louis a preliminary injunction in a separate case allowing Missouri’s only abortion clinic to remain open for now.
Stelzer’s order Monday was the latest decision in Planned Parenthood’s legal fight to keep Missouri from becoming the first U.S. state without an abortion clinic since the Supreme Court’s Roe v. Wade decision in 1973 established a woman’s right to terminate her pregnancy.
The order mandates that the Department of Health and Senior Services issue a decision on the renewal of Planned Parenthood’s license “without undue delay but no later than June 21.”
Stelzer did not tell the state how to rule. “The authority to make that decision rests exclusively with the Department of Health and Senior Services,” the order said.
The new law bans abortions at the eighth week of a woman’s pregnancy, except in medical emergencies. There is no exception for pregnancies caused by rape or incest.
The law also would ban abortion completely if the U.S. Supreme Court overturns the Roe v. Wade ruling that legalized abortion.
The American Civil Liberties Union of Missouri and Joplin roofing magnate David Humphreys, who is a major donor to Republican causes, want voters to reject the law.
Under the state Constitution, most new laws in Missouri take effect on Aug. 28 of each year.
However, before sending the measure to Gov. Mike Parson, Republicans inserted a clause to have a portion of the law concerning parental notification of a minor’s abortion go into effect immediately.
In rejecting the petitions, Ashcroft cited a provision in the constitution that prohibits referendums on “laws necessary for the immediate preservation of the public peace, health or safety.”
The ACLU and Humphreys contend Missouri case law states that judges can determine whether an emergency clause is valid.
Attorney Lowell Pearson, who is representing Humphreys, said the emergency clause prohibition on referendums doesn't apply because only part of the bill, and not the entire measure, went into effect right away.
The ACLU also said the emergency clause was included "not because of an immediate need to preserve the public peace, health, or safety but rather in order to defeat any attempt to refer the bill for voter approval or rejection under the fundamental right of referendum described in the Missouri."
The third petition, which was submitted by Humphreys, asks voters to strike everything in the law except the two-parent notification provision.
Ashcroft said that maneuver wouldn’t work.
“A small number of state constitutions provide an option to refer a portion of a law to the people for a vote, but Missouri does not have that option,” Ashcroft said in a statement Tuesday.
Groups seeking to overturn the law have until Aug. 28 to gather an estimated 100,000 signatures stop the law from going into effect until the referendum is held.
Although the clock is ticking, Pearson told reporters he’s not worried about running out of time.
“It is unlikely to cause any delay,” Pearson said.
The fight over the new law comes against the backdrop of a separate licensing dispute between the state and Planned Parenthood's Central West Ed clinic.
Planned Parenthood sued the department last month, alleging the state agency had illegally refused to renew the St. Louis abortion clinic’s yearly license until the state could complete an investigation into an unspecified patient complaint.
The department alleged it found instances of “multiple” failed abortions at the abortion clinic in the Central West End and that Planned Parenthood was not complying with further investigation.
Planned Parenthood argued in court that Missouri had no right to withhold the license for the clinic because it had corrected the problems cited by the state. One of the deficiencies the state cited was the timing of a pelvic exam and the clinic's failure to ensure the same doctor providing an "informed consent visit" 72 hours before the abortion was the same one performing the procedure. The clinic says it corrected all deficiencies the state cited in its inspection.
The American College of Obstetricians and Gynecologists, which sets guidelines for women's health care, criticized the legislature and health department for creating "unnecessary obstacles for women trying to access constitutionally protected, medically appropriate care."
"It is unacceptable that lawmakers and bureaucrats are attempting to dictate how doctors practice medicine without regard to medical science and are treating them like criminals," the organization said in a statement. "While pelvic exams may be appropriate for patients with certain conditions, routine multiple pelvic exams for women seeking abortion care are unwarranted, invasive, and not supported by evidence."
State health department chief Dr. Randall Williams, who is licensed by Missouri as an obstetrician-gynecologist and is a member of the national medical organization, has previously called pre-abortion pelvic exams "good, standard medical practice."
The health department in a news release Monday said the pelvic exam has been part of mandatory health assessment since 1988, and that the regulation requiring the exam has changed only once, in 2018. The statement came in response to what it said was inaccurate information reported by "a national media outlet."
In response, Dr. Colleen McNicholas, an obstetrician-gynecologist at Planned Parenthood in St. Louis, and the clinic’s medical director, Dr. David Eisenberg, held a press conference Tuesday at the Central West End clinic to discuss the pelvic exam that has been the subject of recent news coverage.
They said the state recently started enforcing "medically unnecessary and invasive" pelvic exams on women seeking medication abortions, who make up more than one-third of the clinic's patients, Eisenberg said.
“I can’t explain why they would justify such a change in their interpretation other than their intent to stop abortion care being available in the state of Missouri,” Eisenberg said.
Blythe Bernhard of the Post-Dispatch contributed to this report.