MISSOURI STATE MEDICAL ASS'N v. State

This is a suit to invalidate section 376.1753, RSMo Supp.2007, which legalizes the practice of “tocology,” or midwifery. The trial court invalidated the statute on the grounds that the bill in which the statute was passed violated the original purpose, single subject and clear title requirements of article III, sections 21 and 23, of the Missouri Constitution. Because this appeal presents a challenge to the validity of a state statute, this Court has exclusive jurisdiction. Mo. Const, art. V, sec. 3. Having determined that plaintiffs have no standing to bring the suit, the judgment is reversed.

Section 376.1753 states as follows: Notwithstanding any law to the contrary, any person who holds current ministerial or toeological certification by an organization accredited by the National Organization for Competency Assurance (NOCA) may provide services as defined in 42 U.S.C. 1396 r-6(b)(4)(E)(ii)(I) [“services related to pregnancy (including prenatal, delivery and post partum services)”].

The circumstances relating to the passage of House Bill 818, the bill that contained section 376.1753, are not in dispute. HB 818 was originally introduced in the House of Representatives on February 8, 2007. The title to the bill was “An act to repeal sections 376.961, 376.962, 376.964, and 376.989, RSMo, and to enact in lieu thereof nineteen new sections relating to portability and accessibility of health insurance.” This original version of the bill made amendments and additions to existing statutory provisions within chapter 376 pertaining directly to the Missouri Health Insurance Pool and the Missouri Health Insurance Portability and Accountability Act. The bill then underwent two revisions in the House in which more amendments, *87additions and repeals were made, all directly related to health insurance. Then on April 12, 2007, the bill passed the full House and was first read on the Senate floor that same day. As HB 818 worked its way through the Senate, more versions were submitted with more amendments, and the title was changed to state that the bill was repealing and enacting sections “relating to health insurance.” On May 10, during the last week of the legislative session, HB 818 came up for debate on the floor of the Senate, and a substitute bill was offered, then withdrawn, and a second substitute bill was offered in which section 376.1753 was inserted for the first time. The second substitute bill then passed the Senate, and 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). The following day, May 11, the second Senate substitute passed the House unchanged, and on June 1, the governor signed the bill into law.

The plaintiffs are Missouri State Medical Association, the Missouri Association of Osteopathic Physicians and Surgeons, Missouri Academy of Family Physicians, and the St. Louis Metropolitan Medical Society. The defendants are the State of Missouri and intervenors Friends of Missouri Midwives, Kelly and Dallion Rehm, Eric and Jessica Kerr, Dr. Elizabeth Allemann, M.D., Columbia Community Birthing Center, Missouri Midwives Association, Ivy White and Kim James.1

Before passing judgment on the constitutionality of a statute, this Court must determine whether plaintiffs have standing to bring the constitutional challenge. City of Wellston v. SBC Commc’ns, Inc., 203 S.W.3d 189, 190 (Mo. banc 2006). Because standing is a question of law, review of the issue on appeal is de novo. Verni v. Cleveland Chiropractic Coll., 212 S.W.3d 150, 153 (Mo. banc 2007). This Court has held that standing, in essence, “roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve Seh. Dist. R-II v. Bd. of Aldermen of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). Nonetheless, this Court has consistently required that plaintiffs have some legally protectable interest in the litigation so as to be directly and adversely affected by its outcome. Id. Where, as here, plaintiffs are associations of individuals, standing must be predicated, inter alia, on the fact that the association members would have standing to bring their claims individually. Mo. Health Care Ass’n v. Att’y Gen. of Mo., 953 S.W.2d 617, 620 (Mo. banc 1997).

Plaintiffs’ primary claim of standing is premised on a concern that physicians’ voluntary cooperation with nurse midwives who are not “licensed” may subject those physicians to professional discipline by the Board of Registration for the Healing Arts. The argument is based on the interplay of three statutes regulating the practice of medicine. The first, section 334.010, RSMo 2000, provides, “It shall be unlawful for any person not now a regis*88tered physician within the meaning of the law to practice medicine or surgery in any of its departments ... or engage in the practice of midwifery in this state.... ” The second, section 334.100.2(10), RSMo 2000, provides that a physician is subject to professional discipline who “knowingly perform[s] any act which in any way aids, assists, procures, advises, or encourages any person to practice medicine who is not registered-” The third, section 191.228, RSMo 2000, which overlaps with section 334.100.2(10), states: “No physician or pharmacist licensed in this state shall be subject to discipline for authorizing, assisting or cooperating with other health care professionals licensed by this state who are practicing their profession within the scope of their license.”

Citing these statutes, plaintiffs argue that “if licensed physicians coordinate patient treatment decisions with unlicensed midwives, those physicians and surgeons will be subject to professional discipline.” And they emphasize that “the statutes are clear and explicit that midwifery is the practice of medicine and that physicians may be disciplined for assisting, aiding, procuring, advising, or encouraging ‘in any way’ an unlicensed person to practice as a midwife.” All this, however, overlooks the fact that section 376.1753 overrides these disciplinary provisions to the extent they apply to midwifery. Section 376.1753 expressly legalizes the services of certified midwives and does so “Notwithstanding any law to the contrary.” Thus, certified midwives are exempted out of the unlawful practice of medicine under section 334.010. Furthermore, physicians are no longer subject to discipline under section 334.100.2(10) for aiding, assisting, procuring, advising, or encouraging certified midwives to practice medicine because certified midwives are not engaging in the practice of medicine as it is defined in section 334.010.

Nor does it appear that physicians are subject to discipline under section 191.228. That section is a prohibition against disciplining physicians who assist or cooperate with other health care professionals licensed by this state. But plaintiffs contend that that section, by negative implication, also authorizes the discipline of physicians who assist or cooperate with other health care professionals (including midwives) who are not licensed by the state. It does not necessarily follow, however, that this prohibition against disciplining physicians is also a grant of authority to impose discipline. Section 191.228 is a stand-alone provision that does not purport to relate to the comprehensive statutory scheme for discipline of physicians set out in section 334.010 et seq. and administered by the Board of Registration. Moreover, any negative implication of a grant of authority to impose discipline, at least as applied to physicians who assist or cooperate with certified midwives, would fly in the face of section 376.1753’s express legalization of certified midwifery. Without finally deciding the legal efficacy of section 191.228, suffice it to say that the prospect that the Board of Registration would or could invoke section 191.228 to impose discipline against physicians who assist or cooperate with certified midwives is simply too attenuated, too slight, and too remote to confer standing. This Court holds, therefore, that plaintiffs cannot predicate standing on the perceived risk that their physician members will be subject to discipline.

In the alternative, plaintiffs claim third-party standing on the ground that physicians are representatives of their patients, relying on Planned Parenthood of Kansas & Mid-Missouri, Inc. v. Nixon, 220 S.W.3d 732 (Mo. banc 2007). That reliance, however, is misplaced. Planned *89Parenthood conferred physicians standing only to assert the rights of their female patients, “as against governmental interference with the abortion decision.” Id. at 737 (quoting Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). This is an exception to the general rule against third-party standing and is limited to abortion cases. See Singleton, 428 U.S. at 115, 96 S.Ct. 2868. It bears mention as well that one of the reasons for the general rule — that the actual holders of rights may not wish to assert them, id. at 113-14, 96 S.Ct. 2868 — is particularly pertinent here. Those who are inclined to engage the services of certified midwives under section 376.1753 would have no interest in contesting the validity of section 376.1753.

In conclusion, plaintiffs have no standing to challenge the constitutional validity of section 376.1753, and for that reason, the judgment is reversed.