The Missouri Supreme Court isn’t as ready to hear the appeal of a ruling that allowed abortions to resume in the state as Attorney General Andrew Bailey is to argue it in front of the seven judges.
In filings for an appeal of Jackson County Circuit Judge Jerri Zhang’s July 3 preliminary injunction, Bailey’s office asked for an expedited schedule and a hearing the week of Aug. 11. The two Planned Parenthood organizations suing to block enforcement of laws regulating abortion, represented by the ACLU of Missouri, agreed there should be an expedited schedule but suggested arguments the week of Aug. 18 would be better.
But instead of setting a schedule, the court has directed the attorneys to explain why it should hear arguments at all. The two sides have until Friday “to show cause as to why this court has exclusive appellate jurisdiction over this appeal” under the Missouri Constitution.
“It means somebody’s questioning whether they’ve got the authority, the jurisdictional authority, to hear this case,” said Heidi Vollet, an attorney fromJefferson City who clerked for then-U.S. Supreme Court Chief Justice William H. Rehnquist in 2001 and teaches appellate law to other practicing attorneys for continuing legal education.
“That doesn’t mean they’ve decided one way or the other, that they do or do not,” she said. “So show cause means that they’re concerned enough about it that there’s a question and they want to hear from the parties on that subject.”
Zhang’s July 3 ruling allowed surgical abortions to resume, and Planned Parenthood clinics are providing appointments for women in St. Louis, Columbia and Kansas City. The clinics cannot offer medication abortions because the ruling did not block enforcement of a law requiring clinics to have complication plans for women who experience issues after taking the drugs. The state has thus far not signed off on a complication plan submitted earlier this year.
The order blocked the regulation describing what must be in the complication plan, such as access to a physician at all hours, but not the law itself requiring the plans.
Vollet said the Supreme Court has a limited number of cases where the law bypasses the three district appellate courts, usually the first stop in the appeals process. One set of cases involve the validity “of a statute or provision of the constitution of this state…”
If the type of case isn’t listed with the categories where the Supreme Court has exclusive jurisdiction, an appeal must generally be filed first with the court of appeals.
The show-cause order’s reference to the court’s exclusive jurisdiction is not a question the court had to ask, said former Missouri Supreme Court Chief Justice Mike Wolff.
“The Supreme Court has the authority to bypass the court of appeals and take an appeal directly,” Wolff said.
It will be up to Bailey’s office to show the court it has exclusive jurisdiction, or for Planned Parenthood to admit that having a statute declared invalid is their goal, for the court to agree to hear the case, Wolff said.
Bailey’s office did not respond to a request for comment.
The ACLU said the court made the right move by issuing the show-cause order.
“The Missouri Supreme Court is correct to seek the parties’ positions to the question of jurisdiction,” said spokesman Tom Bastian. “This is the first time we have seen a direct appeal on a circuit court ordered preliminary injunction to the Missouri Supreme Court, whose authority is set by the Constitution.”
In the appeal, Bailey’s office is asking the court to decide that the case should not be before Zhang at all, but in Cole County. The appeal also asks the court to declare that Zhang used the wrong legal standard when issuing the preliminary injunction.
Because the ruling from Zhang is a preliminary injunction, it is not final. That means she has not yet decided whether the state laws her orders block violate the terms of the abortion rights amendment approved by voters in November. Instead, her decision is based on the likelihood the Planned Parenthood plaintiffs will prevail at trial and which side is damaged more, the plaintiffs if the laws are enforced or the state that will see its laws go unenforced.
The show-cause order doesn’t necessarily alter the timeline either party requested for an expedited hearing, Vollet said.
“They absolutely are interested to know about jurisdiction,” she said. “And they’re looking at that presumably before they order a certain time frame.”
This is the second time the question of whether Zhang had grounds to block enforcement of state abortion laws and regulations has come before the court. In May, the court issued a writ ordering Zhang to withdraw two previous preliminary injunctions issued by Zhang.
It is the first time Bailey’s office has used a power newly granted by the legislature to appeal a preliminary injunction that blocks enforcement of any provision of the constitution, state law or regulation.
The law was an attack on abortion rights, Bastian said, because it was passed only because of the case being heard by Zhang.
“The law allows the state, and only the state, to appeal interlocutory preliminary injunctions that temporarily block the enforcement of laws that likely violate the constitution,” Bastian said.
But the new law, which took effect April 24 with Gov. Mike Kehoe’s signature, does not assign jurisdiction over those appeals to a particular court.
“For very good reason, if this doesn’t belong in the Supreme Court, they’re much better off,” Wolff said. “This is my personal view of it, but by letting the Court of Appeals decide this in the first instance, and then they can take it, take transfer or not take transfer, depending on how badly the court of appeals screwed it up, or not at all.”