State ex rel. Missouri State Bd. of Registration for Healing Arts v. Southworth

• Citation: 704 S.W.2d 219
• Decision Date: 18 February 1986
• Docket Number: No. 66799,66799
• Parties: STATE ex rel. MISSOURI STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent, v. Cheryl Lynn SOUTHWORTH, Appellant.
• Court: United States State Supreme Court of Missouri

Page 219

704 S.W.2d 219

59 A.L.R.4th 915

STATE ex rel. MISSOURI STATE BOARD OF REGISTRATION FOR the

HEALING ARTS, Respondent, v. Cheryl Lynn SOUTHWORTH, Appellant.

No. 66799.

Supreme Court of Missouri,

En Banc.

Feb. 18, 1986.

Michael A. Wolff, St. Louis, Martin Mazzei, Steelville, for appellant.

David Brydon, Vicki J. Goldammer, Hawkins, Brydon & Swearengen, P.C., Jefferson City, for respondent.

RENDLEN, Judge.

Respondent Missouri State Board of Registration for the Healing Arts (Board) pursuant to § 334.230, RSMo Cum.Supp.1984, brought suit to enjoin appellant from engaging in the unauthorized practice of medicine or midwifery in violation of § 334.010, RSMo 1978. Subsequent to issuance of a temporary restraining order the case was heard and the trial court, finding that appellant was engaged in the unauthorized practice of medicine and midwifery, issued its permanent injunction. This appeal followed. Because the validity of a statute is in issue, the cause falls within the exclusive appellate jurisdiction of this Court. Mo. Const. art. V, § 3.

Appellant by her own testimony is a midwife. She testified that she "assist[s] people in the birth of their children if they are having births at home, and sometimes that includes midwifery." She is a member of the Missouri Midwife Association, lists midwifery as her self-employed occupation on her income tax return and has signed her name, with a registration number, to birth certificates as a midwife. At the time of hearing appellant had "assist[ed] women who are having babies" for 11 1/2 years. She had lived in Missouri for the last two years and during each of the two years prior to the hearing had assisted approximately seventeen women in childbirth.

The trial court findings, supported by the record, establish that in the course of acting as a midwife appellant conducted: internal (by hand) and external examinations of the vagina; blood pressure examinations; examinations for fluid retention, including ankle and leg ¹ examinations; examinations of urine specimens; and visual examinations of pregnant women. She took pelvic measurements by sight, recorded medical histories, monitored fetal heartbeats, and sutured lacerations. While acting as a midwife appellant used a blood pressure cuff, stethoscope, surgical gloves, speculum, mistletoe, African red pepper (cayenne), infant bulb syringe, alfalfa pills, sutures and needles, and test strips for sugar. Appellant advised pregnant women about their diet and recommended that they take vitamins.

Appellant testified that her services also included child care, housekeeping, helping the woman to the hospital if necessary, and providing encouragement and moral support. Further, appellant is not licensed as a midwife, ² physician, registered nurse, or practical nurse in Missouri or any other state, though her standard charge for services is four hundred dollars. While this is negotiable, she offers her services free when a family cannot afford to pay her and sometimes payment is by goods or services in lieu of cash.

Appellant further testified that she does not have an office, does not have a telephone listing as a midwife, and does not advertise. She recommends to the women that she assists that they go to a doctor during the prenatal period. Appellant generally does not give intravenous injections, though she did so at least once prior to issuance of the temporary restraining order. During her two years of childbirth assistance in Missouri only two women experienced serious complications and in both instances she helped them to the hospital.

Upon its conclusion that appellant had engaged in the unauthorized practice of medicine and midwifery the trial court entered its judgment providing in part as follows:

Cheryl Lynn Southworth is hereby permanently enjoined from engaging in any fashion in the unauthorized practice of medicine or midwifery in the State of Missouri. Specifically, defendant, Cheryl Lynn Southworth, shall not conduct the following examinations or procedures, nor provide, conduct or do the following acts:

A. Dispensing, prescribing or administering any medication or drugs;

B. Internal (by hand) and external examinations of the vagina;

C. Blood pressure examinations;

D. Pelvic measurements by sight;

E. Examinations for fluid retention, including ankle and leg examinations;

F. Examinations of urine specimens;

G. Taking and recording medical histories;

H. Monitoring fetal heart beats;

I. Visual examinations of pregnant women;

J. Blood strip tests;

K. Signing birth certificates as a midwife with a given registration number;

L. Suturing lacerations;

M. Prenatal care for pregnant women; and

N. Deliver or assist in the delivery of any human child or fetus.

Section 334.010, RSMo 1978, provides:

It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities, or engage in the practice of midwifery in this state, except as herein provided. (Emphasis added.)

Seeking reversal appellant contends: (1) § 334.010 is unconstitutionally vague; (2) she is not engaged in the practice of midwifery as a profession; (3) there was no evidence of harm to any person or the public generally; and (4) the injunction exceeds the scope of § 334.010.

I.

First appellant maintains that § 334.010 is unconstitutionally vague and uncertain in violation of her due process rights, Mo. Const. art. I, § 10, U.S. Const. amend. XIV, in that the statute makes it unlawful, except as otherwise provided, for any person other than a registered physician to "practice medicine" or to "engage in the practice of midwifery" without defining either phrase. Appellant stresses the importance for a statute to precisely define the prohibited conduct where such fundamental constitutional interests as right of privacy, marriage, procreation, childbirth, childbearing, and family relations are involved. ³

This Court, in State v. Young, 695 S.W.2d 882, 884 (Mo. banc 1985), stated recently that:

Vagueness, as a due process violation, takes two forms. One is the lack of notice given a potential offender because the statute is so unclear that "men of common intelligence must necessarily guess at its meaning." [Citations omitted.] The second is that the vagueness doctrine assures that guidance, through explicit standards, will be afforded to those who must apply the statute, avoiding possible arbitrary and discriminatory application.

The "void for vagueness" doctrine is applicable to civil as well as criminal cases. Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 123, 87 S.Ct. 1563, 1566, 18 L.Ed.2d 661 (1967) (where exaction of obedience to rule or standard is so vague and indefinite as really to be no rule or standard at all); Ferguson Police Officers Association v. City of Ferguson, 670 S.W.2d 921, 927 (Mo.App.1984). A statute is presumed constitutional and will not be held otherwise unless it clearly contravenes a constitutional provision. Young, 695 S.W.2d at 883.

Tested by these principles the phrases "practice medicine" and "engage in the practice of midwifery" are not so imprecise and uncertain as to render § 334.010 void for vagueness. "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 requirement as to definiteness and certainty." Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980).

We have previously held, in State v. Errington, 355 S.W.2d 952, 956 (Mo. banc), appeal dismissed for want of a substantial federal question, 371 U.S. 3, 83 S.Ct. 27, 9 L.Ed.2d 48 (1962), that the phrase "practice of medicine" is not unconstitutionally vague, stating:

[T]he "practice of medicine," [is] a term of common understanding and meaning and universally accepted to include, although not necessarily limited to, the acts of one publicly representing himself to be trained in the treatment and cure of ills of the human body and purporting for a fee to diagnose bodily ills and effectuate a cure or an alleviation thereof.

Likewise the words "practice of midwifery" are words of common usage, understandable by persons of normal intelligence. Appellant herself testified that the term "midwife" means "a woman assisting a woman at childbirth." Her definition is almost identical to that of Black's Law Dictionary 895 (5th ed. 1979), wherein midwife is defined as "[a] woman who assists at childbirth; an accoucheuse." Similarly the relevant definition of "midwifery," found in Webster's Third New International Dictionary 1432 (1981), is "the art or act of assisting at childbirth; also: OBSTETRICS." Similarly the word "practice," as used in § 334.010, is one of common usage. Its relevant meaning is "the exercise of a profession or occupation." Webster's Third New International Dictionary 1780 (1981). It is defined in Black's Law Dictionary 1055 (5th ed. 1979) in relevant part as: "Repeated or customary action; habitual performance; a succession of acts of similar kind; custom; usage. Application of science to the wants of men. The exercise of any profession." These definitions are those commonly attributed to these words. Suffice it to say that "practice of midwifery" is commonly understood to include the exercise of, as a profession or occupation, the art or act of assisting at childbirth.

Section 334.010 is not void for vagueness on account of its failure to expressly define "practice medicine" or "engage in the practice of midwifery." Persons of ordinary intelligence need not guess at the statute's meaning and the statute affords sufficient guidance to those who must apply it.

II.

Appellant next invites this Court to consider § 334.010, through an examination of its historical development, as prohibiting only midwifery which is...