MISSOURI STATE MEDICAL ASS'N v. State

WILLIAM RAY PRICE, JR., Judge,

dissenting.

This lawsuit was brought by four associations of physicians to contest a statute that legalizes the practice of midwifery. The associations claim that the statute is unconstitutional because HB 818, the bill in which the statute was enacted, violates the clear title, single subject, and original purpose requirements of the Missouri Constitution. The majority finds that the physician members of the associations, and therefore the associations themselves, had no standing to challenge the constitutionality of the statute and reverses the trial court judgment. I respectfully dissent.

I. STANDING

a.

An association can sue on behalf of its members if it meets three requirements: (1) its members would otherwise have standing to bring their suit in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Mo. Health Care Ass’n v. Attorney Gen. of the State of Mo., 953 S.W.2d 617, 620 (Mo. banc 1997). In this case, the only requirement in dispute is whether the individual physician members have standing to bring the suit in their own right.

The physician members claim standing on two grounds. First, they claim a concern that cooperation with the midwives may subject them to professional discipline. Second, they allege that they have an interest because the use of midwives will result in an increased need for emergency healthcare. In turn, this will affect both their ability to practice and the health and safety of their patients. The second argument provides a sufficient basis for standing.

b.

As to the ability to practice, the physicians allege that they will have to interact with the midwives either by advising their patients of their services or collaborating in the treatment of the patients. Further, they allege, that complications arise during pregnancy and birth that require the skill of the physician and the facilities of a hospital. When these emergency situations arise during home births, the physicians will be required to provide difficult *90and high risk emergency care. These allegations are sufficient to establish the physician’s individual standing to challenge the constitutionality of the statute.

c.

The physician members also have standing as representatives of their patients. In Singleton v. Wulff, 428 U.S. 106, 117-118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), the United States Supreme Court found that physicians had standing to assert the rights of their women patients. The Court reasoned that the physician’s close relationship to their patients made them “uniquely qualified” to litigate the constitutionality of the state’s interference with abortion decisions. Id. Further, although the women’s obstacles to bring suit on their own behalf were not insurmountable, there was “little loss in terms of effective advocacy from allowing its assertion by a physician.” Id. This Court adopted this reasoning in Planned Parenthood of Kansas v. Nixon, 220 S.W.Bd 732, 737-38 (Mo. banc 2007), where the Court found that Planned Parenthood had standing to bring the suit on behalf of their minor patients. The Court, citing Singleton, stated that “it is generally appropriate to allow a physician to assert the rights of women patients against governmental interference with the abortion decision” and expanded representative standing to Planned Parenthood as well. Id.

This case is directly controlled by these two decisions. A physician’s ability to represent the interests of his or her patients is not limited to the abortion context. The legalization of midwives is alleged to have an adverse affect on women’s and newborn infants’ ability to receive safe and quality healthcare. Physicians are in the best position to effectively advocate their patients’ rights because of their expertise in this area and familiarity with the risks of the procedures and because they will ultimately be called upon to actually participate in the care of mothers and infants in instances of error or unforeseen complications. In fact, in this situation, the physicians may be the only party able to challenge this statute, especially relative to yet to be born infants.

The purpose of our standing requirements is to ensure that an actual controversy exists and that the controversy is fairly litigated by adverse parties. See Mo. Health Care Ass’n, 953 S.W.2d at 620. There is no doubt that there is an actual controversy and that the medical associations are capable of fairly litigating the case. The purpose of the standing requirements is not to shield questionable legislation from legal challenge by denying standing to the only individuals or entities capable of litigating the case at hand.

II. CONSTITUTIONALITY

Section 376.1753, which legalizes the practice of midwifery, was enacted as part of HB 818. The initial title of HB 818, in pertinent part, was a bill “relating to portability and accessibility of health insurance.” The final version of the bill’s title stated that it was a bill:

To repeal sections 103.085, 143.121, 143.782, 313.321, 376.426, 376.776, 376.960, 376.961, 376.964, 376.966, 376.986, 376.989, 379.930, 379.936, 379.938, 379.940, 379.942, 379.943, 379.944, and 379.952, RSMo, and to enact in lieu thereof forty-nine new sections relating to health insurance, with an effective date for certain sections (emphasis added).

Section 376.1753 was not specifically identified in the title and the bill contained no other provisions concerning midwifery. The majority of the sections enacted or repealed by this bill, including the midwife provision, are codified in chapter 376, *91which concerns life, health, and accident insurance. Most of the provisions in the bill are also enforced or implemented by the Department of Insurance, Financial Institutions and Professional Registration. The trial court found that regulating the practice of midwifery was not the same subject as health insurance and because midwifery did not relate to health insurance, the title was underinclusive. The trial court further held that the addition of this provision changed the original purpose of the bill, which concerned health insurance accessibility and portability.

Article III, section 28 provides that “no bill shall contain more than one subject which shall be clearly expressed in its title” (emphasis added). The single subject provision requires that all provisions of the bill must fairly relate to the same subject, have a natural connection therewith or are incidents or means to accomplish the bill’s purpose. See Hammer-schmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994). The subject of the bill is discerned from the title of the bill. Id. The clear title provision requires that the title indicate, in a general way, the kind of legislation being enacted. See Fust v. Attorney Gen. for the State of Mo., 947 S.W.2d 424, 429 (Mo. banc 1997). If the title of the bill contains a particular limitation or restriction, “a provision that goes beyond that limitation in the title is invalid because such title affirmatively misleads the reader.” Id. The clear title and single subject requirements are interrelated and function as procedural limitations over legislative action, designed to facilitate orderly procedure, prevent logrolling, and to defeat surprise in the legislative process. See Hammerschmidt, 877 S.W.2d at 102.

The title of HB 818 is “relating to health insurance.” This title and the other sections of the bill indicate that the bill’s subject is health insurance. The midwife provision legalizes midwives to provide pregnancy related services. The practice of midwifery is not the same subject as health insurance. The title of HB 818 does not clearly indicate its contents and affirmatively misleads the readers of the type of legislation the bill intends to enact.

The state argues that HB 818 is constitutional because a direct relationship exists between health services, which include midwifery, and health insurance. It notes that insurance coverage can only be expanded to include midwifery if the services are legal. It concludes that the midwife provision accomplishes the bill’s purpose of increasing availability and affordability of health insurance.

The midwife provision and the remaining provisions of the bill may relate to the general concept of health services. However, the general concept of health services is broader than health insurance, the subject and title of the bill. Moreover, the midwife provision does not mandate insurance coverage for these services and does not address in any way how this provision will affect existing public health or health insurance law. Thus, it cannot be said that the midwife provision of the bill “fairly relates to the same subject” or is “incidents or means to accomplish the bill’s purpose.”1

Because the midwife provision is not essential to the efficacy of the bill, the omission of this provision would not make the other portions of the bill incomplete or unworkable, and the provision is not one without which the legislators would not *92have adopted the bill, this provision should be severed from the remainder of HB 818. See Hammerschmidt, 877 S.W.2d at 108.

Because HB 818 violated the constitutional requirements of single subject and clear title, section 376.1753 is unconstitutional and should be severed from HB 818. Therefore, I would affirm the trial court’s judgment.

. Since it is clear on the merits that this bill violates the clear title and single subject requirements of the constitution, the original purpose requirement need not be addressed, although the same result would follow.