Planned Parenthood of St. Louis Region, et al., Respondents, vs. Department of Social Services, Division of Medical Services, et al., Appellants.

PLANNED PARENTHOOD OF ) Opinion issued June 30, 2020 ST. LO UIS REGIO N , ET AL., ) ) Respondents, ) ) v. ) No. SC98020 ) DEPARTM EN T O F SO CIAL SERVICES, ) DIVISION OF MEDICAL SERVICES, ) ET AL., ) ) Ap p e lla nts. ) APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable David L. Dowd, Judge Section 208.152.1(6), (12) 1 , provides that the MO HealthN et Divis io n of the Missouri Department of Social Services "shall" make payments to authorized providers "on behalf of" Medicaid-e ligib le individ ua ls for "physic ia ns' services " and "[f]a mily planning." Notwithsta nd ing that the General Assembly appropriated money for Fiscal Year 2019 ("FY2019") to pay for these services, and notwithstanding that Planned Parenthood of the St. Louis Region and Reproductive Health Services of Planned Parenthood (collectively, "Planned Parenthood") was an authorized provider of these 1 References to section 208.153 are to RSMo 2016. References to section 208.152 are to RSMo Supp. 2018. All other statutory references are to RSMo 2016.

2 services because it had an agreement with MO HealthNet under section 208.153.2 to do so, MO HealthNet informed Planned Parenthood that it could not reimburse Planned Parenthood fo r these services during FY2019 due to section 11.800 of the FY2019 appropriation bill. This p ro vis io n states: "No funds shall be expended to any abortion facility as define d in Section 188.015, RSMo, or any affiliate or associate thereof." Ho us e Bill No. 2011 ("HB2011"), § 11.800 (2018). Planned Parenthood c ha lle n g e d the c o ns titu t io n a l va lid it y o f section 11.800 of HB2 0 1 1 , c la imi n g it is imp e r mis s ib le to use an appropriatio n b ill to amend substant ive law (i.e., §§ 208.153.2 and 208.152.1(6), (12)) because this vio lates article III, section 23 of the Missouri C onstitut io n. The circuit court agreed, and MO HealthNet appeals. 2 This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. The central issue before this C ourt is whether there is a direct conflict between: (a ) the langua ge of sections 208.153.2 and 208.152.1(6), (12) requir ing MO HealthNet to pay its authorized providers (includ i ng Planned Parenthood) fo r covered p hys ic ia ns' services and family planning provided to Medicaid-eligible individuals; and (b) the language of section 11.800 o f HB2011 prohibiting MO HealthNet from doing so. If there is such a direct conflict, section 11.800 is invalid because a rtic le III, section 23 o f the Missour i C onstitut io n prohibits using an appropriation bill to amend a substantive statute. 2 Also appealing are the Mis s our i Department of Social Services and the Missouri Medicaid Audit and Compliance Unit. For ease of reference, however, all appellants are referred to herein collectively as MO HealthNet.

3 The circuit court's judgme nt found such a conflict and declared section 11.800 invalid. The circuit court concluded this unconst it ut io na l section should be severed, leaving the re ma ind e r o f HB2011 unaffected. This C ourt agrees, and the circuit court's jud gme nt in this re s p e c t is a ffir me d . Background M is s o ur i' s M e d ic a id p ro gra m is k no wn a s M O He a lthN e t, a nd it is a d min is te r e d by the MO HealthN et Divis io n of the Missouri Department of Social Services. Section 208.152.1 provides: MO HealthNet payments shall be made on behalf of those eligible needy persons ... who are unable to provide for it in whole or in part ... fo r the fo llo w i ng: ... (6)Physicians' services, whether furnis hed in the office, home, hospital, nursing home, or elsewhere; ... (12)Family planning as defined by federal rules and regulations; provided, however, that such famil y planning services shall not include abortions unless such abortions are certified in writing by a physic ia n to the MO HealthNet agency that, in the physic ia n's professio na l judgme nt, the life of the mother would be endangered if the fetus were carried to term[.] § 208.152.1 (emphasis added). As noted in this statute, the payments are made "on behalf of" the M e d ic a id e lig ib le person receiving the services, but they are made to the authorized provider fro m whic h the eligible person received the services. Section 208.153.1 further provides, "Any person entitled to MO HealthNet benefits may obtain it fro m any provider of services with which an agreement is in effect under this section and which undertakes to provide the services, as authorized by the MO HealthN et divis io n. " [E mphasis added.]

4 MO HealthNet concedes that it has authorize d Planned Parenthood to provide p hys ic ia ns' services and family planning to Medicaid-e ligib le individ ua ls and that Planned Parenthood had an agreement in effect for FY2019 with MO HealthNet under section 208.153.1 to do so. Prior to FY2019 at least, this was sufficient to permit Planned Parenthood to provide those services and receive payment for them from MO HealthNet from money appropriated by the General Assembly. For FY2019, the General Assembly again appropriated funds for the "purpose of funding physic ia n services and related services includ i ng, but not limit ed to, ... family planning services under the MO HealthNet fee-fo r-service program[.]" See HB2011, § 11.455. This time, however, the General Assembly added section 11.800 to the MO HealthNet appropriation b ill, HB2011. Section 11.800 provides: In reference to all sections in Part 1 [including section 11.455, which appropriates money for physicians' services and family planning] and Part 2 o f this a c t: No funds shall be expended to any abortio n fa c ilit y as defined in Section 188.015, RSMo [ 3] ,

or any affiliate or associate thereof. As a result of this langua ge, 4 MO HealthNet notified Planned Parenthood that it was prohibit ed from making any payments to Planned Parenthood for physic ia n or famil y planning services rendered to Medicaid-eligible individuals during FY2019. 5

3 Section 188.015(2) provides, "'Abortion facility', a c linic , phys ic ia n's office, or any other place or facility in which abortions are performed or induced other than a hospital ...." 4 MO HealthNet originally relied on section 11.715 in P art 2 of HB2011, as well as section 11.800. It since has dropped that contention, and the validity or enforceability of section 11.715 will not be addressed further. 5 The appropriations in HB2011 pertain to obligations incurred in FY2019, which ended June 30, 2019. See Mo. Const., art. IV, § 28 ("No appropriation shall confer authority to incur an obligation after the termination of the fiscal period to which it relates ...."). Neither

5 Planned Parenthood filed complaints with the Administrative Hearing C o mmis s io n ("AHC "). The AHC is s ue d d e c is io ns in fa vo r o f MO HealthNet but noted it lacked authority to address Planned Parenthood's constitutional challenges. Planned Parenthood then sought consolidat ed jud ic ia l re vie w of the AHC decisions in the St. Lo uis City C ircuit C ourt. The circuit court entered judgme nt for Planned Parenthood, declaring that section 11.800 of HB2011 vio la te s article III, section 23 of the Missouri C onstitut io n and severing that provis io n from the remainder of HB2011. 6 The circuit MO HealthNet nor P lanned P arenthood suggests this case is moot, and the Court need not address this issue because, even if it were moot, this Court would still render an opinion under the exception recognized in State ex rel. Peters-Baker v. Round, 561 S.W.3d 380, 384-85 (Mo. banc 2018) (explaining an exception to the mootness doctrine has been recognized "when the issue raised is one of general public interest and importance, recurring in nature, and will otherwise evade appellate review"). Not only is the issue presented here one of general interest, it appears this issue is recurring and like ly w ill evade review if not addressed in this case. The proof is found in House Bill No. 11 (2019), which contains the MO HealthNet appropriations for Fiscal Year 2020. There – much as it did in section 11.800 of the 2019 appropriation bill – the General Assembly added section 11.930, which provides: "In reference to all sections in P art 1 and P art 2 of this act: No funds shall be expended to any clinic, physician's office, or any other place or facility in which abortions are performed or induced other than a hospital, or any affiliate or associate of any such clinic, physician's office, or place or facility in which abortions are performed or induced other than a hospital." See also H ous e B ill No. 2011 (2020), § 11.930 (same). That language is subject to the same constitutiona l challenge asserted against section 11.800 in the 2019 appropriation bill but, just as in the present case, it is unlikely such a challenge could be concluded within that fiscal year. 6 The circuit court further declared the reference to section 188.015(2) in section 11.800 of HB2011, and its impact on the purpose set forth in section 11.455 of that appropriation bill, violated article IV, section 23 of the Missouri Constitution, which provides in relevant part: "Every appropriation law shall distinctly specify the amount and purpose of the appropriation without reference to any other law to fix the amount or purpose." [Emphasis added.] Because thi s Court affirms the circuit court's judgment that section 11.800 is unconstitutiona l under article III, section 23 of the Missouri Constitution, no purpose is served by addressing this alternative claim further, and the portion of the circuit court's judgment declaring section 11.800 unconstitutiona l under article IV, section 23 is hereby vacated. In addition, the circuit court rejected P lanned P arenthood's other claims, but P lanned P arenthood does not cross-appeal from these adverse determinations and those claims will not be addressed further in this opinion.

6 court taxed costs against MO HealthNet, and MO HealthNet challe nge s both of these determinatio ns in its a p p e a l to this Court. Analys is "Constitutional challenges to a statute are reviewed de novo." Calzone v. Interim Comm'r of Dep't of Elementary & Secondary Educ., 584 S.W.3d 310, 315 (Mo. banc 2019) (quotation marks omitted). An act of the General Assembly "approved by the governor carries with it a strong presumpt io n of constitut io na lit y." Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994). "A state legislative body has the power to enact any law not prohibited by the constitution, and the state constitution, unlike the federal constitution which is a grant of powers, is a limitation on legislative power." State ex inf. Danforth v. Merrell, 530 S.W.2d 209, 213 (Mo. banc 1975). "This Court will resolve doubts in favor of the procedural and substantive validity of an act of the le gis la t ur e . " Hammerschmidt, 877 S.W.2d at 102. "Attacks against legislative action founded on constitutionally imposed procedural limitations are not favored; [this Court] ascribe[s] to the General Assembly the same good and praiseworthy motivations as info r m o ur d e c is io n- making processes." Id. The challenger bears the burden of establishing that an act of the General Assembly is unconstitutional. Calzone, 584 S.W.3d at 315. The Court will up ho ld the c o ns titu t io na l va lid it y of an act passed by the General Assembly unless the act "clearly and undoubtedly" violates a constitutional limitatio n. Hammerschmidt, 877 S.W.2d at 102. Article III, section 23 provides, "N o b ill s ha ll c o nta in more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception

7 in section 37 of t his artic le and ge neral appropriat ion bills, which may embrace the various subjects and accounts for which moneys are appropriated." In other words, section 23 prohibits bills with more than one subject but allows a narrow exception to that prohibit ion for appropriat ion bills because such bills necessarily include multi ple su bjects, i.e., appropriat ions of diff ering amounts from differing accounts for differing subjects. But to keep the narrow e xception for "general appropriat ion bill s" from swallowing the broad prohibition against bills containing multi ple subjects, this Court has long recognized that this exception in article III, section 23 "limits appropriation bills to appropriations only." Rolla 31 Sch. Dist. v. State, 837 S.W.2d 1, 4 (Mo. banc 1992) (e mphasis added). In other words, any bill that purports to combine appropriat ions with the enactment or a mendmen t of general or substanti ve law necessarily contains more than one subject in violation of art ic le III, section 23, and such a bill does not fa ll wit hi n the exception for "g eneral appropriat ion bills ." See State ex rel. Davis v. Smith, 75 S.W.2d 828, 830 (Mo. banc 1934) ("There is no doubt but what the amendment of a ge neral statute such as section 13525, a nd the mere appropriat ion of money are two ent irely different and separate subjects."). In State ex rel. Hueller v. Thompson, 289 S.W. 338, 340-41 (Mo. banc 1926), this Court explained: A n a p p ro p ria tio n b ill is jus t wha t the terminology imports, and no more. Its sole purpose is to set aside moneys for specified purposes, and the lawmaker is not directed to expect or look for anything else in an appropriation bill except appropriations. As to these he is charged by the Constitution to look and watch for two things: (a) The various subjects of

8 the bill; and (b) the account or accounts for which the payment of the state's moneys are being set apart. The same section and article of the Constitution forbids any bill, except as in the Constitution provided, to contain more than a single subject, and this must be clearly expressed in the title . The exceptions are two, one of which is appropriation bills .... As has been observed in well–reasoned cases, if the practice of incorporating legislation of general character in an appropriation bill should be allowed, then all sorts of ill conceived, questionable, if not vicious, legislation could be proposed with the threat, too, that, if not assented to and passed, the appropriations would be defeated.... Our Constitution (section 28, art. 4), is the one certain safeguard against such distracting possibilities and should be strictly followed. We hold, therefore, that section 100 of the Appropriation Act, under our Constitution, is unconst it ut io na l and void[.] T hree generations later, Rolla 31 School District reaffirmed that the inclus io n of s ub s ta nt ive le gis la t io n in a n a p p ro p ria tio n s b ill is a mo ng the e vils the s ing le s ub je ct requireme n t in a rtic le III, s e c tio n 2 3 was meant to prevent. The Dav is court [he ld ] that the act appropriating $3,000 from the general revenue fund to the Board of Barber Examine rs Fund could not amend the general statute because a statute that makes an appropriation and also amends a general statute would contain more than one subject and, therefore, would violate Article IV, Section 28 of the Missouri Constitution (1875) (now in Article III, Section 23 of the Missouri Constitution (1945)). This c o ns titu t io na l limita t io n, whic h p ro vid e s tha t no b ill s ha ll c o nta in more than one subject and limits appropriation bills to appropriations only, is s till go o d la w. Rolla 31 Sch. Dist., 837 S.W.2d at 4 (emphasis added). The C ourt explaine d, however, that it takes more than some mere incons iste nc y between an express appropriation and the entire body of general law to constitute a single subject violation. The holding in Dav is only applies to resolve a conflict between the general statute and an appropriation when it attempts to amend the general legislation. If the conflict between two statutes is less than direct, e.g., an ambiguity in the general statute, then such a conflict may be resolved by

9 relying upon the appropriation as strong evidence of the legis la t ure 's intent io n in adopting the general statute. Id . (emphasis added). 7

Accordingly, the issue before this Court is whether section 11.800 violates the s ing le s ub je c t re q uire me nt in article III, section 23 of the Missouri Constitution. If section 11.800 of the FY2019 appropriation b ill HB201 1 is in d ire c t c o nflic t with sections 208.153.1 and 208.152.1(6), (12), then it is an attempt to amend those general statutes and is unconst it ut io na l because HB2011 contains mult ip le s ub je c ts , i. e ., appropriations and amendme nt s to substant ive law. O n the other hand, if sections 208.153.1 and 208.152.1(6), (12) are ambiguous regarding which authorized providers are eligible to receive MO HealthNet payments and which are not, there is no single subject violation because section 11.800 should be viewed only as an interpretive aid to resolve that ambiguity. I.Section 11.800 of HB2011 Is Unconstitutional MO HealthNet appeals the portion of the circuit court's judgme nt declaring section 11.800 to be unconst it ut io na l under article III, section 23 of the Missouri 7 The parties also cite and discuss this Court's analysis of article III, section 23 in State ex rel. Gaines v. Canada, 342 Mo. 121, 113 S.W.2d 783 (Mo. banc 1937). Gaines was an action in mandamus by Lloyd Gaines, a qualified African American applicant to the University of Missouri School of Law, to compel the University of Missouri curators to admit him into the law school during an era of state-man dated racial segregation in education. Id. at 127-28. This Court held that the opportunity offered to Gaines to have his tuition paid at a law school in an adjacent state was not an equal protection violation. Id. at 137. In an early harbinger of Brown v. Board of Education, 347 U.S. 483 (1954), the United States Supreme Court reversed this Court, concluding Gaines' right to equal protection of the law had been violated. State ex rel. Gaines v. Canada, 305 U.S. 337 (1938). Because the rot of state-mandated racial segregation infests the entirety of th is Court's Gaines decision, it is repudiated in its entir ety and, henceforth, should no longer be cited even for the most otherwise unimpeachable legal principles.

10 C o ns titu t io n. P la nne d P a re ntho o d p ro p e rly ra is e d this c la im firs t in the AHC , whic h lacked the authority to decide it and did not address it. See Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999). Because it had been raised before the AHC, however, Planned Parenthood was able to rea s s e rt it in its petitio ns for judicia l review of the AHC 's determinat io ns. As a result, even though this C ourt ordinar ily reviews the decision of the AHC in appeals concerning petitions for judicial review, this Court reviews the decision of the circuit court when the c la im involves a question the AHC could not decide, i. e ., a claim that a statute is unconst it ut io na l. Id. The C ourt holds that nothing in the applicable portions of sections 208.152 and 208.153 is ambiguous and there is no basis, therefore, to conclude that section 11.800 of HB2011 is merely an indication of legislative intent to be used as an interpretive aid. Instead, section 11.800 is in direct conflict with the applicable provisions of sections 208.152 and 208.153, which specify plainly and unamb iguo us l y what MO HealthNet payments will cover and to whom those payments must be made. To begin with, as set forth in full above, section 208.152.1(6), (12) provides, in pertinent part, that MO HealthNet payments "shall" be made on behalf of Medicaid-e ligib le individ ua ls for "physic ia ns' services " and "family planning. " Even though section 208.152 provides only that payments shall be made "on behalf o f" Medicaid-eligible individuals for covered services, section 208.153 provides that these individuals can obtain those services from any authorized health care provider, i.e., "any provider" that has an agreement with MO HealthNet Division to provide those services.

11 Accordingly, the payments required under section 208.152 are to be made to whichever authorized provider the Medicaid-eligible individual chose to provide the covered services. The plain language of these statutes admits of no other conclus io n. Specifica l ly, nothing in these statutes states – or even suggests – that payment for covered services "shall" be made only to some authorized providers but not others depending up on which uncovered, non-Medicaid services an authorized provid e r a ls o happens to make available to its patients. Because there is no ambiguity in sections 208.153.1 and 208.152.1(6), (12) as to which authorized providers are eligible to receive MO HealthNet payments and which are not, there is no basis for treating section 11.800 in the FY2019 appropriation b ill HB2011 as a mere interpretive aid to resolve an ambiguity. Instead, these statutes plainly and unambiguously provide that MO HealthNet "shall" use appropriated funds to pay any authorized provider that renders covered services to Medicaid-eligible individuals. When the meaning of the general law is clear, there is no need for "guidance" in an appropriation b ill. As a result, the language in section 11.800 seeking to disqualify certain authorized providers based on services they provide separately and apart from the MO HealthNet program – and for which no MO HealthNet payments can be made – is a naked attempt to use HB2011 both to appropriate funds for various purposes and to amend sections 208.153.1 and 208.152.1(6), (12). This is a clear and unmistakable vio la t io n o f the p ro s c rip t io n in article III, section 23 of the Missouri C onstit ut io n against b ills with mult ip le s ub je c ts .

12 MO HealthNet argues section 11.800 of HB2011 does not amend sections 208.153.1 and 208.152.1(6), (12) because both can be complied with, i. e ., a ll Medicaid-eligible individuals can receive all covered services from authorized providers and MO HealthNet will pay those authorized providers for those services. This is true, however, only if every single Medicaid-eligible individual in FY2019 happens to choose an authorized provider that is not excluded by the prohibit io n against payment in section 11.800. In other words, section 11.800 purports to add a limitation on which health care providers MO HealthNet can authorize to provide covered services to Medicaid-eligib le individ ua ls. But section 208.153 unamb iguo us l y provides that the only limita t io n is that the health care provider be authorized by an agreement with the MO HealthNet Divis io n to do so. See § 208.153.1 ("Any person entitled to MO HealthNet benefits may obtain it fro m any provider of services with which an agreement is in effect under this section and which undertakes to provide the services, as authorized by the MO HealthNet d ivis io n. " ) (emphasis added). MO HealthNet also argues that nothing in section 208.152.1(6), (12) guarantees that every health care provider in the state can provide covered services and be entitled to payment from MO HealthNet for them. This, too, is incorrect. Sections 208.153.1 and 208.152.1(6), (12) provide two – and only two – conditio ns to payment : (1) that the provider be authorized by an agreement with the MO HealthNet Division to provide covered services; and (2) that the provider be chosen by the Medicaid-e ligib le individ ua l to provide a covered service. Section 11.800 of HB2011 purports to add a third condition. Accordingly, Mo HealthNet's efforts to reconcile section 11.800 with the

13 ge ne ra l la w p ro vis io ns in s e c tio ns 208.153.1 and 208.152.1(6), (12) fa il. 8 If the General Assembly wants to change the conditio ns that must be met to be an authorize d provider of MO HealthNet services, it must do so by amending the statutes in which those conditions are found – and article III, section 23 prohib it s a b ill who s e s ub je c t is appropriations fro m a ls o b e ing used for that purpose. Until a p ro p e r a me nd me n t is enacted, an appropriation bill can say how much money can be used and for what purpose, but sections 208.153.1 and 208.152.1(6), (12) control who is e lig ib le to re c e ive those funds. 9

8 The direct and unavoidable conflict between section 11.800 of HB2011 on the one hand and sections 208.153.1 and 208.152.1(6), (12) on the other distinguishes this case from Rolla 31 School District and Opponents of Prison Site, Inc. v. Carnahan, 994 S.W.2d 573 (Mo. App. 1999). In those cases, the general law was ambiguous in its requirements or the appropriation was consistent with the requirements laid down by the general law. See Rolla 31 Sch. Dist., 837 S.W.2d at 5 (finding no direct conflict created by the appropriation because "there is an inherent ambiguity in section 162.700.5 when it purports to prohibit funding the preschool special education program by a 'reallocation of money appropriated for the public school foundation program,' because monies from the School Foundation P rogram had been used to fund a similar voluntary program in prior years"); Opponents of Prison Site, 994 S.W.2d at 579 ("giving the words used their plain meaning, we find that the legislative intent, with respect to decisions concerning the construction of prisons, including those involving site selection, was for the JCC to make recommendations to the General Assembly and for it, after due consideration, to decide what course to take, if any, through legislative action" and holding an appropriation was such a "legislative action" within the meaning of the general law). Here, neither is true. Moreover, in State ex rel. Tolerton v. Gordon, 139 S.W. 403 (Mo. banc 1911), on which the dissenting opinion r e lie s s o heavily, no one even argued the "proviso" at issue in that case was an attempt to amend general or substantive law. Instead, this Court held that the General Assembly's attempt to use this "proviso" to control who could hold the office of State Game and Fish Commissioner violated the separation of powers provision and the constitutional prohibit ion against special la ws. Id. at 407-10. 9 In Rebman v. Parson, 576 S.W.3d 605, 610 (Mo. banc 2019), this Court held "the general assembly may control how many [administrative law judges] the department [of labor and indus tr ia l r e la tions ] can appoint, but it may not [use an appropriation bill to] dictate who w ill f ill those positions." [Emphasis added.] Though the constraining law in Rebman was the Missouri Constitution and the separation of powers doctrine, it sheds meaningful light here. Until amended, sections 208.153.1 and 208.152.1(6), (12) control which providers are eligible to receive whatever funds are appropriated to provide covered services to Medicaid-e lig ib le

14 Finally, MO HealthNet argues sections 208.153.1 and 208.152.1(6), (12) do not purport to fund Planned Parenthood's – or any other authorized provider's – participation in the delivery of MO HealthNet services, nor do these statutes obligate the General Assembly to provide such fund ing in any given year. These assertions are far from the point. Plainly, nothing in sections 208.153.1 and 208.152.1(6), (12) purports to appropriate money or to require an appropriation of any amount in any year and, unless funds stand appropriated by the constitution or the constit ut io n mandates an appropriation be made, it is beyond question that the General Assembly has discretion to decide appropriations on an annual or biannual basis. But these bedrock le ga l p rinc ip le s do not resolve the present case. Here, the General Assembly chose to appropriate nearly $400 millio n for, among other things, providing p hys ic ia n s' services and family planning to Medicaid-e ligible ind iv id ua ls in s e c tion 11.455 of HB2011. This was one of presumably thousands of difficult decisions made each year during the appropriations process. But, having made this d e c is io n, MO HealthNet is bound by general law – e.g., sections 208.153.1 and 208.152.1(6), (12) – defining what those services are and which providers are entitled to payment for delivering them. Any attempt to use an appropriation b ill to amend such general laws necessarily runs afoul of the multiple subject prohibit io n in article III, section 23 o f the Missour i C onstitut io n. individua ls, and the General Assembly cannot circumvent those statutes by inserting new limita tions in an appropriation bill.

15 II.Section 11.800 Is Properly Severed from HB2011 It is imp re c is e to s a y this o r tha t s e c tio n o r p hra s e in a b ill vio la te s the s ingle subject requireme n t in a rtic le III, s e c tio n 2 3 of the Missouri Constitution. This requirement applie s to e ntire b ills , a nd a b ill e ithe r c o mp lie s or it does not. Nevertheless, this Court routinely engages in a severance analysis to determine whether it is proper to strike only the provisio ns that caused the single subject violation and leave the remainde r o f the b ill in e ffe c t. See, e.g., Hueller, 289 S.W. at 341 (declaring only the offend ing portion of the appropriation bill "uncons t it ut io na l and void") (emphasis added). Here, the circuit court determined severance was appropria te but relied upon section 1.140 to do so. The reliance on this statute was incorrect, as this C ourt has explained in the past: It is importa nt to note that this Court applies a different severance analysis for procedurally unconst it ut io na l statutes than it does for substant ive ly unconst it ut io na l statutes. The statutory severabilit y provisio n, section 1.140, RSMo Supp. 2011, applies when a provision is unconstitutional in substance. While section 1.140 delineates when severance of substantively unconst it ut io na l provisio ns is appropriate, it does not support the doctrine of severability of bills enacted in violation of the procedural mandates of the constitutio n.... As Hammerschmidt indicates, when "the procedure by which the legislature enacted a bill violates the Constitution, severance is a more difficult issue." 877 S.W.2d at 103. In fact, the severance analysis is different. That is because the General Assembly's c o ns titu t io n a l vio la t io n ra is e s the following question: If all provisions of the bill were passed through an unconst it ut io na l procedure, should any of the provisio ns be considered va lid ? Despite this concern, and in due deference to our co-sovereign branch of governme nt—which also takes an oath to support the Missouri C o ns titu t io n—this Court has severed bills presenting procedural violations in the past. See St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708 (Mo. banc 2011); cf. Hammerschmidt, 877 S.W.2d 98. B ecause of the difference between substantive c o ns titu t io na l vio la t io n s a nd procedural constit ut ional violations, this Court uses different standards

16 when evaluat i ng whether invalid provisions may be severed. For substantive violations, this Court applies section 1.140 to analyze whether severance is appropriate. O n the other hand, when evaluat i ng a procedural constitutional violation, the doctrine of judicial severance is applied and severance is only appropriate when this C ourt is "convinc ed beyond a reasonable doubt" that the legislature would have passed the bill without the additional provisions and that the provisio ns in question are not essential to the efficacy of the bill. Hammerschmidt, at 103–104. Both of these inquiries seek to assure the Court that, beyond a reasonable doubt, the b ill wo uld ha ve b e c o me la w—a nd wo uld re ma in la w—even absent the procedural violation. If the Court is not convinced beyond a reasonable doubt, then the bill as a whole was passed in violat io n of the constit ut io n and the challenged provisions cannot be severed. Mo. Roundtable for Life, Inc. v. State, 396 S.W.3d 348, 353-54 (Mo. banc 2013) (footnotes omitted). Although the circuit court's reference to section 1.140 was inappropriate, its conclusion that 11.800 is severable was correct. The General Assembly intentionally segregated section 11.800 from the appropriations in the remainder of the bill. In fact, section 11.800 is the o nly section inc lud e d in Part 3 of HB2011, and the General Assembly refers to Part 3 elsewhere in HB2011 as "guidance to the Department of Social S e rvic e s in imp le me nt i n g the a p p ro p ria tions found in Part 1 and Part 2." The General Assembly expressly noted that the provisions of Part 2 "shall not be severed" from Part 1 but provided no similar prohibition against severing section 11.800 in Part 3. Accordingly, this C ourt is convinc ed beyond a reasonable doubt that HB2011 would have passed without section 11.800 and that nothing in 11.800 is essential to the efficacy of the appropriations made elsewhere in HB2011. The judgme nt of the circuit court is a ffir me d in this respect.

17 III. Costs Were Improperly Taxed to MO HealthNet The very last sentence in the circuit court's judgment states: "Costs are taxed against [MO HealthNet]." This subject is not mentioned anywhere else in the judgment. MO Healt hNet claims this was error because costs cannot be ta xed aga inst the state (or its departments, divisions, agenc ies, or officers in the ir official capacit ie s) wit hout a specific statute author izing the court to do so. MO Hea lth Net is correct. Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993) ("Absent statutory aut hority, costs cannot be recovered in state courts from the state of Missouri or its ag enc ies or officials."). No statute aut horizes the circ uit court to tax costs aga inst the state in this action, and the judgment is vacated with respect to this iss ue. Pl anned Parenthood argues the circ uit court acted properly under section 536.087.1, which provides: A party who prevails in an agency proceeding or civil action arising therefro m, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust. See also Garland v. Ruhl, 455 S.W.3d 442, 446 (Mo. banc 2015) ("Section 536.087 waives sovereign immunit y only for unjust ified positio ns by state agencies in contested administrative cases.") (quotation marks and emphasis omitted). To be sure, Planned Parenthood sought an award of attorney fees and expenses under section 536.087 in its petitio n fo r jud ic ia l re vie w. And assuming, without deciding, that this action arose from an "agency proceeding" as defined in section

18 536.085(1), Planned Parenthood may be entitled to such an award if the le ga l p o s itio n s taken by MO HealthNet were not substant ia l ly justifie d as required by section 536.087.1. But nothing indicat es this is what the circuit court intended to do, and much suggests it was not. To "tax costs" to a non-preva ili ng party is not the same as to "award" fees and expenses to a party who prevails against the state in an administrative proceeding. The fo rme r is a uto ma t ic a nd la rge ly min is te r ia l. See §§ 514.060 ("In a ll c ivil a c tio ns , o r proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law."); 514.260 (" The clerk shall tax and subscribe all bills of costs arising in any cause or proceedings instit uted or adjudged in the court ..."). An award of attorney fees and expenses under section 536.087, on the other hand, requires evidence and a more nuanced evaluation of the state's positio ns. With no indicat io n that the circuit court was acting under section 536.087.1 with respect to the challenged portion of the judgment taxing costs to MO HealthNet, the use of the verb "taxed" rather than "awarded" leads this C ourt to assume the circuit court was acting under section 514.060. That statute is not suffic ie nt to authorize the circuit court to tax costs to the state actors in this action, however, and the portion of the judgment doing so is reversed. Conclus ion For the reasons set forth above, the portion of the circuit court's judgme nt declaring section 11.800 of HB2011 to be unconstitutional under the single subject re q uire me n t in a rtic le III, s e c tio n 2 3 o f the M is s o ur i C o ns titu t io n and severing that

19 provision from the remainder of HB2011 is a ffir me d. The portion of the circuit court's judgme nt declaring the cross-reference to section 188.015 in section 11.800 of HB2011 to be unconst it ut io na l under article IV , section 23 of the Missour i C onstitut io n is vacated as unnecessar y. The portion of the judgme nt taxing costs to MO HealthN et is reversed.

_____________________________ Paul C . Wilson, Judge

Draper, C.J., Russell, Powell, Breckenridge and Stith, JJ., concur; Fischer, J., dissents in separate opinion filed.

PLANNED PARENTHOOD OF ) ST. LO UIS REGIO N , ET AL., ) ) Respondents, ) ) v. ) No. SC98020 ) DEPARTM EN T O F SO CIAL SERVICES, ) DIVISION OF MEDICAL SERVICES, ) ET AL., ) ) Ap p e lla nts . )

of the Missour i C onstitut io n, the principa l opinion fails to persuade me that the plain and unamb iguo us langua ge of § 23—which exempts appropriation b ills fro m its p urv ie w— does not control the resolution of this case. I also dissent because, even if § 23 does apply to appropriation b ills , the c ha lle n ge d la ngu a ge in HB2011 is constitutional because it embraces one of the various subjects for which money is appropriated. Section 23 provides, "No bill shall contain more than one subject which shall be clearly expressed in its title, except . . . general appropriation bills, which may embrace the various subjects and accounts for which moneys are appropriated." (E mphas is added). This Court has repeatedly held, when the langua ge of a constitut io na l provisio n is

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clear and unamb iguo us , this C ourt has no other duty than to apply the langua ge of the p ro vis io n a s writte n. State ex rel. Hillman v. Beger, 566 S.W.3d 600, 605 (Mo. banc 2019) ("If the langua ge of a statute [ 1] is plain and unamb iguo us, this C ourt is bound to apply that language as written and may not resort to canons of construction to arrive at a differe nt result. "); Saint Louis Univ. v. Masonic Temple Ass'n of St. Louis, 220 S.W.3d 721, 726 (Mo. banc 2007) ("Constitutional construction is not required if the words at issue are plain and unambiguo us. ") ; Concerned Parents v. Caruthersville Sch. Dist. 18, 548 S.W.2d 554, 559 (Mo. banc 1977) (same). The princip a l opinio n starts its analys is with the plain langua ge of § 23 and acknowledging § 23 "prohib its b ills with mo re tha n o ne s ub je c t but allows a narrow exception to that prohibition for appropriation bills because such bills necessarily include multiple subjects, i.e., appropriations of differing amounts from differing accounts for differing subjects." Slip op. at 7 (emphasis added). 2 Instead of following the clear and unamb iguo us langua ge of § 23, the principal opinion cites to Rolla 31 School District v. State, 837 S.W.2d 1 (Mo. banc 1992), State ex rel. Davis v. Smith, 75 S.W.2d 828 (Mo. banc 1934), and State ex rel. Hueller v. Thompson, 289 S.W. 338 (Mo. banc 1926), for the proposition that an appropriation b ill that amends a general law necessarily contains mult ip le subjects in violat io n of § 23. Slip op. at 7- 9. By using Rolla 31, Dav is,

1 "The rules applicable to construction of statutes are applicable to the construction of constitutiona l provisions; the latter are given broader construction due to their more permanent character." Buechner v. Bond, 650 S.W.2d 611, 612 (Mo. banc 1983). 2 At no point does the principal opinion suggest, let alone conclude, § 23's language is unclear or ambiguous.

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and Hueller to justify the application of § 23 to HB2011, instead of the plain langua ge o f the constitution, the principal opinion puts the cart well before the horse. W hile Rolla 31, Dav is, and Hueller generally hold the le gis lature may not amend ge ne ra l la ws thro ugh a p p ro p ria tio n b ills, they fail to engage in any meaningful analys is tethering that p o lic y proposition to the plain text of § 23. Instead, those cases merely contain blanket assertions and citations to past cases that explain the perceived good po lic y behind the proposition. See Rolla 31, 837 S.W.2d at 4 ("[Section 23], which provides tha t no bill shall contain more than one subject and limits appropriation bills to appropriatio ns o nly, is s till go o d la w. "); Dav is, 75 S.W.2d at 830 (citing Hueller and stating, "[L]egis la t io n of a general character cannot be included in an appropriation bill. If an appropriation bill had attempted to amend section 13525, it would have been void in that it would have violated [§ 23][.]"). 3

3 Hueller provides: As has been observed in well-reasoned cases, if the practice of incorporating legislation of general character in an appropriation bill should be allowed, then all sorts of ill conceived, questionable, if not vicious, legislation could be propose d with the threat, too, that, if not assented to and passed, the appropriations would be defeated. The possibilit ies of such legislation and this court's condemnation thereof are well illustrated in the case of State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S. W. 403 as well as the following cases from other states: State ex rel. v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163; Com. v. Gregg, 161 P a. 582, 29 A. 297. Our Constitution [§ 23], is the one certain safeguard against such distracting possibilit ies and should be strictly followed. 289 S.W. at 341. Once again, no analysis is undertaken showing how this proposition stems from the plain text of the Missouri Constitution. Of the cases cited by Hueller, only Gregg adequately delves into a constitutiona l analysis; however, that case is le ga lly distinguis hable from the present one. In Gregg, the Supreme Court of P ennsylvania noted its constitutiona l equivalent to § 23, article III, section 2, which read, "that no bill, except general appropriation bills, shall be passed, containing more than one subject." 29 A. at 298 (internal quotations omitted). That court went on to address the issue of the legislature inserting general legislation into appropriation bills but noted "[g]eneral appropriation bills, from their nature, usually cover a number of items, not all relating

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Without any textual foundat io n in the constitut io n, this C ourt cannot rely on perceived good p o lic y to add words to the clear and unamb iguo us langua ge of § 23. See Indep.-Nat'l Educ. Ass'n v. Indep. Sch. District, 223 S.W.3d 131, 137 (Mo. banc 2007) (holding this C ourt has no authorit y to add langua ge to constit ut io na l provisio ns when the language written is clear and unamb iguo us). Even if one accepts the principal opinio n's assertion that an appropriation b ill that amends a general law contains multiple subjects, I s till d o no t a gre e that § 2 3 is vio la te d because § 23 expressly allows appropriation b ills to embrace an unlimited amount of subjects, so long as they relate to the appropriation of money. By disregard ing the constit ut io n's plain langua ge in favor of policy considerat io n s , the principal opinion sets a dangerous precedent in which I cannot acquiesce. Even if § 23 applied to appropriation b ills , and it does not, the challenged langua ge in HB2011 remains constitutionally sound because it "embrace[s] the various subjects and accounts for which moneys are appropriated." Within the provis io ns of HB2011, the General Assembly appropriated funds "[f]or the purpose of fund ing physic ia n services and related services including, [. . .] family planning services under the MO HealthNet fe e-fo r- service program." HB2011, § 11.455 (2018). In limit i n g this a p p ro p ria t io n, the Ge ne r a l Assembly included the language at issue here, which provides, "In reference to all sections

strictly to one subject. They were therefore excepted from the requirement of section 2, and this exception necessitated the special section 15 relating to them." Id. at 297-98 (emphasis added). Article III, section 15 provided, "The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative , and judicial departments of the commonwealth." Id. at 297. A close reading of Gregg shows it stands for the proposition that appropriation bills are exempt from any single-subject constitutional provision, so much so that P ennsylvania had to adopt a second constitutiona l provision to limit the scope of such bills . Because Missouri's Constitution does not have a provision mirroring P ennsylvania's Article III, section 15, Gregg's reasoning cannot be imported to Rolla 31, Davis, and Hueller.

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in Part 1 [which includes § 11.455] and Part 2 of this act: No funds shall be expended to any abortion facility as defined in Section 188.015, RSMo, or any affiliate or associa te thereof." HB2011, § 11.800(2018). Section 23 is no t a mb igu o us; therefore, this Court must apply its plain langua ge to determine if § 11.800 violates our constitution. See Hillman, 566 S.W.3d at 605. The relevant question becomes whether § 11.800 "embrace[s] the various subjects and accounts for which moneys are appropriated." The General Assembly expressly appropriated funds for family planning in § 11.455 and included § 11.800 as a limit on where those appropriated funds could be distributed. The inclusion of § 11.800 undenia b l y embraces a subject—the expendit ure of funds appropriated for family planning—for which the General Assembly appropriated funds. As such, § 11.800 does not violate § 23. This analys is and conclusion is supported by State ex rel. Tolerton v. Gordon, 139 S.W. 403 (Mo. banc 1911). In Tolerton, the General Assembly passed the general appropriation bill for 1911 and 1912, which included a section appropriating money for various expenses relating to the operations of the State Fish and Game Department ( "§ 62"). Id. at 405. At the end of § 62, the General Assembly included the follow i ng langua ge ("the proviso") : Provided, that none of the money herein appropriated in this section shall be available or paid so long as the present State Game and Fish Commissio ner re ma ins in this o ffic e o r is in a ny wise connected with the office of State Game and Fish Commissioner, except the salaries and accounts due at the time of the approval of this act.

Id . (interna l quotation omitted).

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Tolerton, the acting State Fish and Game Commissioner, argued the proviso violated the constitutional precursor to § 23. Id. at 406. Although this Court recognized "the ma in purpose of the proviso is the removal of [Tolerton] from the office of game and fish c o mmis s io n e r " it ultima te l y he ld : While the proviso may have had and doubtless did have an object ulterior to the subject of the appropriation of money, it is clearly related to that subject, and has a suffic ie nt l y natural connectio n therewit h as not to be mislea d i n g and as not to conflict with the section of the Constitutio n concerning the title o f a le gis la t iv e b ill.

Id.

Tolerton's reasoning applies with equal force here. Regardless of the General Assembly's ulterior motives in including § 11.800 in HB2011, it is e vid e nt § 11.800 has a natural connectio n to the General Assembly's appropriation of money for family planning a nd is, therefore, constit ut io na l. 4

___________________________ Zel M. Fischer, Judge

4 This Court has used different phrases to describe the test that determines whe the r a bill viola t e s § 23. See Calzone v. In te rim Co mm'r of Dep't of Elementary & Secondary Educ., 584 S.W.3d 310, 321 (Mo. banc 2019) ("A bill does not violate the single subject requirement so long as the matter is germane, connected, and congruous.") (internal quotations and alterations omitted); see also Mo. Roundtable for Life, Inc. v. State, 396 S.W.3d 348, 351 (Mo. banc 2013) ("The test for whether a bill violates the single subject rule is whether the bill's provisions fairly relate to, have a natura l connection with, or are a means to accomplish the subject of the bill a s e xpr e s s e d in the title . ") (internal quotations omitted); see also Ha mme rsc h mid t v. Boone Cnty., 877 S.W.2d 98, 102 (Mo. banc 1994) ("[A] 'subject' within the meaning of article III, section 23, includes all matters that fall within or reasonably relate to the general core purpose of the proposed legislation. ") Regardless of what test is used, it is clear that § 11.800 is related to the general purpose of the bill, which is the appropriation of money for, among other things, family planning.