Fw: Missouri Breast Implant Women's Law Upheld - Informed Consent On Breast Implants Will Remain Law

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From: " ilena rose " <ilena@...>

Sent: Friday, March 23, 2001 2:35 PM

Subject: Missouri Breast Implant Women's Law Upheld - Informed Consent On

Breast Implants Will Remain Law

>http://www.osca.state.mo.us/Courts/PubOpinions.nsf/0f87ea4ac0ad4c0186256405

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> 05d3b8e/fd027780624a9e9986256a1100644dd1?OpenDocument

>

>

> This slip opinion is subject to revision and may not reflect the final

> opinion adopted by the Court.

>

> Opinion

> Supreme Court of Missouri

>

> Case Style: Missouri State Medical Association, et al., Appellants, v.

> Missouri Department of Health, Respondent.

>

> Case Number: SC82758

>

> Handdown Date: 03/20/2001

>

> Appeal From: Circuit Court of Cole County, Hon. J. Brown, III

>

> Counsel for Appellant: Duane E. Schreimann and K. Francka

>

> Counsel for Respondent: H. Klahr, Alana M. Barragan- and Daryl

R.

> Hylton

>

> Opinion Summary:

>

> House Bill 191 began with a title and subject relating to insurance

coverage

> for " cancer early detection. " When enacted by the 90th General Assembly,

it

> contained a title related to " health services " and subject related to

cancer

> early detection as well as specific matters like HIV confidentiality and

> insurance for mental illness and chemical dependency. The Missouri State

> Medical Association and three physicians challenged the bill's

> constitutionality. The circuit court denied relief.

>

> AFFIRMED.

>

> Court en banc holds:

>

> 1) The bill's original purpose was not changed in violation of Article

III,

> Section 21. Extensions or limitations of a bill's scope--even new

> matter--are not categorically prohibited. The bill's content remained

> substantially intact throughout the legislative process as germane

> amendments were added.

>

> 2) The bill has but one subject, in compliance with Article III, Section

23.

> Health insurance, medical records, and standard information are (at least)

> incidents or means to health services.

>

> 3) There is no Article III, Section 23 " clear title " violation. The title

> clearly expresses HB 191's subject. " Health services " is not broad and

> amorphous, because it does not describe most, if not all, legislation

> enacted, and it does not include nearly every activity the state

undertakes.

>

> Citation:

>

> Opinion Author: Duane Benton, Judge

>

> Opinion Vote: AFFIRMED. Price, C.J., Limbaugh, White, Holstein and Wolff,

> JJ., concur. Stith, J., not participating.

>

> Opinion:

>

> The Missouri State Medical Association and three physicians ( " MSMA " )

> challenge the constitutionality of House Bill 191 enacted by the 90th

> General Assembly. 1999 Mo. Laws 301-13. The circuit court denied relief.

> MSMA appeals. Mo. Const. art. V, sec. 3. Affirmed.

>

> I.

> House Bill 191 was introduced on December 22, 1998, with the title:

>

> AN ACT Relating to insurance coverage for cancer early detection.

> As introduced, H.B. 191 would have enacted a new section of law requiring

> that health insurers cover -- for a minimal copayment -- pelvic, prostate,

> and colorectal examinations, and other cancer screenings.

>

> H.B. 191 was signed into law on July 13, 1999, with the title:

>

> AN ACT To repeal sections 191.656, 376.779 and 376.811, RSMo Supp. 1998,

> relating to health services, and to enact in lieu thereof fifteen new

> sections relating to the same subject, with an expiration date for certain

> sections.

>

> 1999 Mo. Laws 301-13, codified at sections 191.656 to 191.657, 374.284,

> 376.779, 376.810 to 376.811, 376.825 to 376.840, 376.1250, 376.1400,

> 376.1403 RSMo 2000(FN1). In addition to mandating insurance coverage for

> cancer early detection, the enacted bill requires:

>

> confidentiality of HIV-related information;

> insurance for mental illness and chemical dependency;

> standard " explanation of benefits " by health insurers;

> standard " referral " information by health insurers and providers;

> standard (pre-operation) information on the advantages, disadvantages, and

> risks,

> including cancer, of breast implantation; and,

> establishment of a health insurance advisory committee.

>

> MSMA particularly objects to the provisions on breast implantation.

> Subsections 1.5 - 1.8 of H.B. 191, 1999 Mo. Laws 312-13, codified at

> subsection 376.1250.5 - 376.1250.8. MSMA contends that H.B. 191 violates

the

> Constitution as it: was so amended during passage as to change its

original

> purpose; contains more than one subject; and has a title that does not

> clearly express its subject.

>

> II.

> MSMA first argues that H.B. 191 was so amended in its passage through the

> legislature as to change its original purpose, in violation of Article

III,

> Section 21 of the Constitution. Emphasizing the title of introduced H.B.

> 191 -- insurance coverage for cancer early detection -- MSMA claims a

" very

> limited " original purpose, which does not include information about breast

> implantation.

>

> MSMA's attempt to restrict the original purpose to the introduced title

> fails for several reasons. True, original purpose is measured at the time

of

> the bill's introduction. Stroh Brewery Co. v. State, 954 S.W.2d 323, 326

> (Mo. banc 1997). However, the Constitution does not require that the

> original purpose be stated anywhere, let alone in the title as introduced.

> Original purpose is the general purpose, " not the mere details through

which

> and by which that purpose is manifested and effectuated. " State ex rel.

> McCaffery v. Mason, 55 S.W. 636, 640 (Mo. banc), aff'd, 179 U.S. 328, 21

S.

> Ct. 125, 45 L.Ed. 214 (1900). The title may be changed as a bill

progresses

> through the legislature, without violating Article III, Section 21.

Lincoln

> Credit Co. v. Peach, 636 S.W.2d 31, 38 (Mo. banc 1982). Laws enacted by

the

> legislature and approved by the governor have a strong presumption of

> constitutionality. Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5

> (Mo. banc 1984). This Court liberally interprets the procedural limitation

> of original purpose. C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 327

> (Mo. banc 2000); Stroh, 954 S.W.2d at 326.

> Section 21 prohibits amendments not germane to the original purpose. C.C.

> Dillon, 12 S.W.2d at 327; Stroh, 954 S.W.2d at 326. Extensions or

> limitations of a bill's scope -- even new matter -- are not categorically

> prohibited. Lincoln Credit, 636 S.W.2d at 38. " Article III, section 21 was

> not designed to inhibit the normal legislative processes, in which bills

are

> combined and additions necessary to comply with the legislative intent are

> made. " Blue Cross Hosp. Service v. Frappier, 681 S.W.2d 925, 929 (Mo. banc

> 1984). Germane amendments do not change a bill's original purpose. State

v.

> Ludwig, 322 S.W.2d 841, 847 (Mo. banc 1959).

>

> MSMA asserts that the amendments to H.B. 191 were not germane to any

> possible original purpose. As introduced, H.B. 191 indicated an original

> purpose to mandate health services for serious illnesses, including

cancer.

> As enacted, H.B. 191 requires that physicians tell patients about the

> advantages, disadvantages, and risks, " including cancer, " of breast

> implantation. Subsections 1.5 - 1.8, 1999 Mo. Laws 312-13, codified at

> subsection 376.1250.5 - 376.1250.8. The original purpose logically relates

> to mandating pre-operation information about the risks of breast

> implantation, including cancer. The subsections on breast implantation are

> germane to the original purpose of H.B. 191.

>

> This Court, on one occasion, invalidated a statute because its original

> purpose changed during the legislative process. Allied Mutual Insurance

Co.

> v. Bell, 185 S.W.2d 4 (Mo. 1945). There, the introduced bill " amended " an

> existing section to eliminate one of several tax deductions. Id. at 5. As

> enacted, the bill " repealed " that section, enacting a new section that

> created a new tax. Id. at 6.

>

> In this case, the content of introduced H.B. 191 remained substantially

> intact throughout the legislative process as germane amendments were

added.

> When legislation proceeds in this manner, this Court has consistently

> rejected " original purpose " challenges during the 125-year history of this

> constitutional prohibition. C. C. Dillon, 12 S.W.3d at 325-28; Stroh, 954

> S.W.2d at 324-26; Akin v. Director of Revenue, 934 S.W.2d 295, 302 (Mo.

banc

> 1996); Blue Cross, 681 S.W.2d at 928-29; Westin, 664 S.W.2d at 4-6;

Lincoln

> Credit, 636 S.W.2d at 37-38; Brown-Forman Distillers Corp. v. McHenry, 566

> S.W.2d 194, 195-97 (Mo. banc 1978); State ex rel. Toedebusch Transfer,

Inc.

> v. Public Service Comm'n, 520 S.W.2d 38, 43-45 (Mo. banc 1975); Ludwig,

322

> S.W.2d at 845, 847. In sum, H.B. 191's original purpose was not changed

> during passage in violation of Article III, Section 21.

>

> III.

> MSMA claims that H.B. 191 has multiple subjects in violation of Article

III,

> Section 23. The test is whether all provisions of H.B. 191 " fairly relate

to

> the same subject, have a natural connection therewith or are incidents or

> means to accomplish its purpose. " Hammerschmidt v. Boone County, 877

S.W.2d

> 98, 102 (Mo. banc 1994). The bill as enacted is the only version relevant

to

> the single subject requirement. C. C. Dillon, 12 S.W.3d at 328-329. This

> Court looks first at the bill's title in order to determine its subject.

> Carmack v. Director, Mo. Dep't of Agric., 945 S.W.2d 956, 959 (Mo. banc

> 1997).

> As enacted, H.B. 191's title reads

>

> AN ACT To repeal sections 191.656, 376.779 and 376.811 RSMo Supp. 1998,

> relating to health services, and to enact in lieu thereof fifteen new

> sections relating to the same subject....

>

> 1999 Mo. Laws 301 (emphasis added). From H.B. 191's provisions -- outlined

> in part I above -- MSMA identifies at least three different subjects --

> insurance, health records, and pre-operation information on breast

> implantation.

> MSMA fails to show " clearly and undoubtedly " that H.B. 191 has multiple

> subjects. Hammerschmidt, 877 S.W.2d at 102. Health insurance, medical

> records, and standard information are (at least) incidents or means to

> health services. H.B. 191 has but one subject, in compliance with Article

> III, Section 23.

>

> IV.

> MSMA argues that H.B. 191 violates the additional requirement in Section

23

> that its subject " shall be clearly expressed in its title.... "

>

> " The 'clear title' provision...was designed to prevent fraudulent,

> misleading, and improper legislation, by providing that the title should

> indicate in a general way the kind of legislation that was being enacted. "

> Fust v. Attorney General, 947 S.W.2d 424, 429 (Mo. banc 1997). The title

may

> omit particular details of the bill, so long as neither the legislature

nor

> the public is misled. Lincoln Credit, 636 S.W.2d at 39. A bill's multiple

> and diverse topics, absent specific itemization, can only be clearly

> expressed by their commonality -- by stating some broad umbrella category

> that includes all the topics within its cover. National Solid Waste Mgmt.

> Ass'n v. Director of Dep't of Natural Res., 964 S.W.2d 818, 821 (Mo. banc

> 1998). The bill as enacted is the only version relevant to the clear title

> requirement. C.C. Dillon, 12 S.W.3d at 329.

> A title may be constitutionally unclear in two ways: the subject may be

too

> broad and amorphous, or so restrictive and underinclusive that some

> provisions fall outside it. Fust, 947 S.W.2d at 428. As indicated in part

> III above, the title health services passes the second test as it includes

> all the provisions of H.B. 191.

>

> Regarding the first test, MSMA contends that health services is so broad

and

> amorphous that it fails to give notice of the bill's content. The textbook

> example of a broad and amorphous title is certain incorporated and

> non-incorporated entities, which could define most, if not all,

legislation

> passed by the General Assembly. St. Louis Health Care Network v. State,

968

> S.W.2d 145, 148 (Mo. banc 1998). Here, health services is not broad and

> amorphous, because it does not describe most, if not all, legislation

> enacted.

>

> This Court observed that economic development is too broad and amorphous

> where it includes " any activity that indirectly promotes or protects

> portions of the Missouri economy, " because nearly every activity the state

> undertakes falls within this meaning. Carmack, 945 S.W.2d at 960. Here,

> health services does not include nearly every activity the state

undertakes.

> MSMA concludes that health services " could relate to nearly any subject "

and

> is thus too broad and amorphous. This Court rejected a similar attack on

the

> subject of environmental control. Corvera Abatement Tech. v. Air

> Conservation Comm'n, 973 S.W.2d 851, 861-62 (Mo. banc 1998). This Court

> construes bill titles in their plain and ordinary sense, not in a strained

> and unnatural meaning. Id. at 862. If alternative readings exist, this

Court

> chooses the reading that is constitutional. Stroh, 954 S.W.2d at 326.

>

> The title clearly expresses the subject of H.B. 191. There is no Article

> III, Section 23 " clear title " violation.

> V.

>

> The judgment of the trial court is affirmed.

> Footnotes:

>

> FN1. All statutory citations are to RSMo 2000.

>

> Separate Opinion:

> None

>

>

> This slip opinion is subject to revision and may not reflect the final

> opinion adopted by the Court.

>

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> Content-Type: application/octet-stream;

> name= " SC82758 Missouri State Medical Association, et al.,

> Appellants, v. Missouri Department of Health, Respondent. (3).url "

> Content-Disposition: attachment;

> filename= " SC82758 Missouri State Medical Association, et al.,

> Appellants, v. Missouri Department of Health, Respondent. (3).url "

>

> Attachment converted: Ilena's 2:SC82758 Missouri State Medical

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> (00001986)

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