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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: Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., et al., Appellants v. Jeremiah W. Nixon, et al., Respondents.

Case Number: SC86768

Handdown Date: 02/28/2006

Appeal From: Circuit Court of Boone County, Hon. Ellen S. Roper

Counsel for Appellant: Mimi Liu, Roger K. Evans, Arthur A. Benson, II, and Jamie K. Lansford

Counsel for Respondent: Victorine R. Mahon, R. Scott Ingram and John L. Patton

Opinion Summary:

Section 189.039, RSMo Supp. 2003, creates an informed consent requirement, including a 24-hour waiting period before elective abortions may be performed in Missouri. Any person who knowingly violates or fails to abide by the provisions of section 189.039 shall be guilty of a class A misdemeanor. Health care practitioners who violate section 189.039 also may face disciplinary action to their licenses to practice. Planned Parenthood sued the Missouri attorney general's office, the St. Louis city circuit attorney's office and the Boone County counselor in Boone County circuit court. Planned Parenthood argues that the statute is unconstitutionally vague and that its 24-hour waiting provision violates rights of liberty and privacy under the state constitution. The trial court granted summary judgment, finding there is no violation under the state constitution. (This case concerns only Planned Parenthood's claims under the state constitution, as all of its federal claims are reserved for resolution in the federal court.) Planned Parenthood appeals.
AFFIRMED.
Court en banc holds: (1) The portions of the statute pertaining to Missouri physicians are not vague. The statute imposes no further duty on physicians than already was imposed at common law, merely codifying the physician's duty to obtain informed consent from a patient prior to an abortion and creates criminal or disciplinary liability if the physician knowingly fails to fulfill that duty. Liability does not extend beyond the physician's actual expertise. The statute requires a physician to warn his or her patient about only those factors the physician knows may affect the patient's medical condition. It allows for criminal liability or license discipline only for risks the individual physician knew he or she should have discussed with the patient but did not.
(2) The 24-hour waiting provision does not violate the Missouri constitution. There is no reason to construe the language in the Missouri constitution more broadly than the corresponding language of the federal constitution, and the United States Supreme Court already has determined that such a waiting provision does not violate the federal constitution. Planned Parenthood v. Casey, 505 U.S. 833, 887 (1992).



Citation:

Opinion Author:
PER CURIAM

Opinion Vote: AFFIRMED. All concur.

Opinion:


I. Introduction
Section 188.039, RSMo Supp. 2003, creates an informed consent requirement including a 24-hour waiting period before elective abortions may be performed in Missouri. Planned Parenthood argues that the act is unconstitutional for vagueness. Planned Parenthood also argues that the 24-hour waiting provision violates rights of liberty and privacy under the Missouri Constitution. All of Planned Parenthood's federal claims have been reserved for adjudication in federal court. This case only concerns Planned Parenthood's facial claims under the Missouri Constitution.
Planned Parenthood filed this action in the Circuit Court of Boone County against the Missouri Attorney General's Office, the Office of the Circuit Attorney for the City of St. Louis, and the Boone County Counselor. The trial court granted summary judgment finding that there was no constitutional violation. The trial court's order stated, in relevant part: "The terms of section 188.039, RSMo Cum. Supp. 2003, are not impermissibly vague; . . . A knowing violation of section 188.039 RSMo is required to subject an individual to criminal prosecution and/or license revocation pursuant to sections 188.075 and 188.065 RSMo; [and] . . . [t]he twenty-four hour waiting period to obtain an abortion does not violate the Missouri or United States Constitution."
This Court has exclusive appellate jurisdiction over this case. Mo. Const. art. V, sec. 3. The judgment of the circuit court is affirmed.
II. The Statute
Section 188.039 states:
The criminal penalty for violation of section 188.039 is contained in section 188.075, RSMo 2000. That section provides: "Any person who . . . knowingly performs or aids in the performance of any abortion or knowingly fails to perform any action required by sections 188.010 to 188.085 shall be guilty of a class A misdemeanor. . . ." Section 188.065, RSMo 2000, provides an additional civil penalty. It provides, in relevant part: "Any practitioner . . . or other health personnel who shall willfully and knowingly do or assist any action made unlawful by sections 188.010 to 188.085 shall be subject to having his license, application for license, or authority to practice . . . in the state of Missouri rejected or revoked . . . ." Sec. 188.065 (emphasis added).
III. Legal Standard
"Statutes are presumed to be constitutional. Accordingly, the burden to prove a statute unconstitutional rests upon the party bringing the challenge. This Court will not invalidate a statute unless it clearly and undoubtedly contravenes the constitution and plainly and palpably affronts fundamental law embodied in the constitution." Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000) (citations omitted). This Court will "resolve all doubt in favor of the act's validity" and may "make every reasonable intendment to sustain the constitutionality of the statute." Westin Crown Plaza Hotel v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). "We do not . . . address the constitutionality of statutes in isolation. Instead, we construe the whole statute and we do so in light of a strong presumption of a statute's validity." State v. Shaw, 847 S.W.2d 768, 76 (Mo. banc 1993) (citations omitted). If a constitutional provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted. See Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993).
IV. Vagueness
Planned Parenthood argues that section 188.039 is unconstitutionally vague. Planned Parenthood focuses particularly upon the requirement that, 24 hours prior to any abortion, the physician must discuss, and document, with the patient "the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure . . . ." Planned Parenthood complains that because the terms "indicators," "contraindicators," "risk factors," and "situational factors" are undefined, a physician cannot know what is required to avoid criminal liability.
A.
"A statute is unconstitutionally vague if it does not give a person of ordinary intelligence sufficient warning as to the prohibited behavior. The vagueness doctrine is designed to help protect against arbitrary and discriminatory application of laws." State v. Self, 155 S.W.3d 756, 760 (Mo. banc 2005) (citations omitted). "The test for vagueness is whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." State v. Brown, 140 S.W.3d 51, 54 (Mo. banc 2004) (citations omitted). "The constitution does not . . . require the legislature to adhere to impossible standards of specificity." State v. Shaw, 847 S.W.2d 768, 774-75 (Mo. banc 1993) (citations omitted). "If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty." State v. Beine, 162 S.W.3d 483, 491 (Mo. banc 2005).
B.
Subsection 5 of the statute is drafted to provide the physician a safe harbor and guidance regarding what must be discussed and documented with the patient at the conference 24 hours prior to the contemplated abortion. The subsection requires the department of health and senior services to disseminate a model form that the physician "may use."
Subsection 5 is of significance in two respects. First, the physician is not required to use the model form. Second, the physician is required to comply with the statute regardless of whether the department of heath and senior services disseminates the form. In this way, the statute recognizes the need of the physician to exercise his or her professional judgment regarding the "indicators and contraindicators, and risk factors" particular to the patient's medical history and medical condition regardless of any model form.
Although the model form may insulate the physician from criminal liability under the statute, the physician still must fulfill his or her professional duties to the patient to obtain her informed consent prior to the initiation of any medical procedure. This is a duty that has been recognized under the law for almost 100 years. See Pratt v. Davis, 79 N.E. 562 (Ill. 1906). Relying on the Pratt case, Mr. Justice Cardozo, writing for the New York Court of Appeals, first described the rule as follows:
Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914). The doctrine developed as a corollary of the law of battery, wherein a touching of the patient's body without consent constitutes a battery, even if the intended contact is to benefit rather than harm the patient. 1 Steven E. Pegalis, American Law of Medical Malpractice Section 4.1 (3d ed. 2005).
The modern trend in informed consent cases is to treat a failure to disclose collateral risks of a medical or surgical procedure as a negligent breach of the physician's duty to his patient. Id. Missouri was one of the first jurisdictions to recognize a duty to obtain informed consent under a negligence theory. Mitchell v. Robinson, 334 S.W.2d 11, 19 (Mo. 1960). In Mitchell, this Court held that "doctors owed their patient in possession of his faculties the duty to inform him generally of the possible serious collateral hazards . . . ." Id. The negligence theory of informed consent has found growing acceptance in many jurisdictions and may properly be characterized as the modern view. Pegalis, Section 4.1, at 292.
Section 188.039 imposes no duty regarding the extent of consultation between a physician and a patient seeking an abortion additional to that already required by common law, a duty that has been recognized under the law for almost 100 years and has been firmly established in Missouri for 45 years.
C.
Missouri law generally requires a mental state as an element to any crime. State v. Self, 155 S.W.3d 756, 762 (Mo. banc 2005). Section 188.075 makes criminal a violation of the requirements of 188.039 only if the health cared provider "knowingly" fails to comply. Section 188.065 provides that a health care provider's license may be subject to discipline only if he or she "willfully and knowingly" violates section 188.039.
At oral argument, the parties agreed that the "knowing" mental requirement of sections 188.039 and 188.065 should be read in conjunction with the requirements of section 188.039 so that the physician is obligated to discuss with the patient only those "indicators and contraindicators, and risk factors" known to the physician in the exercise of his or her best medical judgement. Counsel for Planned Parenthood stated that "the only way to render the act less broad is for the court to read in limitations allowing physicians to exercise their best medical judgment or their good faith medical judgment. . . ." Counsel for the attorney general was asked: "In your reading, does the scienter then incorporate best medical judgment?," She responded: "I think it is absolutely implicit." She later stated: "The scienter requirement of "knowingly" applies to each element of the statute. . . . They have to know that this is a risk factor that would affect this woman, and if they, and if the doctor doesn't believe it's relevant in this case, to this particular woman, to this particular woman's medical condition, then they don't have to counsel on that." The counsel for the circuit attorney stated: "The doctor has to know that this is a risk factor and the doctor has to know that it was not discussed. . . ."
D.
The statute is not vague because, aside from the 24-hour waiting requirement, subsections 2, 3, and 4 of section 188.039 place no further duty upon Missouri physicians than was already imposed at common law. This statute merely codifies the physician's duty to obtain informed consent from a patient prior to an abortion and creates criminal or disciplinary liability if the physician knowingly fails to fulfill that duty. In particular, a physician's duty to warn of "psychological" or "situational" risk factors cannot extend beyond the physician's actual expertise. For purposes of criminal or license liability under this statute, a physician has a duty to warn about only those factors that he or she knows may affect the patient's medical condition.
There is no meaningful difference between the clinical and medical judgment language utilized in section 188.039 and the traditional duty of a physician "to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession." M.A.I 11.06 (1990). The scienter requirement does differ, however. That is, if the physician negligently fails to obtain informed consent he or she may be civilly liable for negligence. By contrast, no criminal or disciplinary action can result unless the physician knowingly dispenses with good faith clinical judgment when consulting and obtaining a patient's informed consent to an abortion or unless the physician knowingly performs an abortion in contravention of the requirements of section 188.039. The statute's "knowingly" requirement allows for criminal liability or license discipline only for risks the individual physician knew he or she should have discussed with the patient, but did not. The statute is not void for vagueness. Specifically, if a physician provides the disclosure required by the statute in accordance with the physician's "good faith clinical judgment" and documents the disclosure in accordance with subsections 4 and 5 of section 188.039, it may well preclude prosecution of the physician on the theory that the disclosure was not sufficient.
V. Constitutionality of 24-hour waiting period
Planned Parenthood also argues that the 24-hour waiting provision violates the Missouri Constitution. The Supreme Court of the United States held in Planned Parenthood v. Casey, that a 24-hour waiting period does not violate the federal constitution. 505 U.S. 833, 887 (1992). That opinion stated:
Despite Casey, Planned Parenthood argues that the Missouri constitution should be construed more broadly than the United States constitution.
The federal due process clause states, in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, sec. 1. The Missouri constitution contains two related clauses. Missouri's due process clause states: "That no person shall be deprived of life, liberty or property without due process of law." Mo. Const. art. I, sec. 10.
Article I, section 2 of the Missouri constitution also states: There is no reason, within the context of this case, to construe this language from the Missouri constitution more broadly than the language used in the United States constitution. See State v. Walsh, 713 S.W.2d 508, 513 (Mo. banc 1986); see generally State ex rel. Danforth v. Cason, 507 S.W.2d 405, 408-09 (Mo. banc 1973).
VI. Conclusion
All concur.

Footnote:

FN1. The state acknowledges that the statements maintained as part of the patient's medical file are subject to the physician/patient privilege.



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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