State v. Planned Parenthood of Kansas & MO

Decision Date31 January 2001
Parties(Mo.banc 2001) . State of Missouri, Respondent, v. Planned Parenthood of Kansas and Mid-Missouri and Planned Parenthood of the St. Louis Region, Appellants, and Maureen Dempsey as the Director of the Missouri Department of Health, Appellant. SC82226 Supreme Court of Missouri Handdown Date: 0
CourtMissouri Supreme Court

Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder

Counsel for Appellant: Arthur A. Benson II, Jamie K. Lansford, Roger K. Evans, Charles Hatfield, Joel E. Anderson, Rikki L. Jones, Barbara J. Wood, Curtis E. Woods and Lana M. Knedlik

Counsel for Respondent: Jordan B. Cherrick and Jeffrey R. Fink

Opinion Summary: Section 10.705 requires that none of the funds appropriated for family planning services be spent directly or indirectly to subsidize abortion services or administrative expenses, including referring patients to abortion providers, displaying or distributing materials about abortion services, or sharing the same name, facilities, expenses, employees, supplies or equipment. When the statute was challenged in federal court, the Attorney General appointed a Special Assistant Attorney General to defend the constitutionality of the statute. The SAAG also brought this action in state court. The state court granted declaratory judgment against planned parenthood and the director of the department of health, enjoined PP from receiving and the director from distributing to PP state family planning funds, and ordered return of funds previously paid.

JUDGMENT VACATED AND CASE REMANDED.

Court en banc holds:

(1) The SAAG's claims against the director in her official capacity appear to exceed and violate the SAAG's express instructions from the Attorney General, yet the AG has not discharged him or objected in the trial court. Avoiding speculation on the authority granted and prematurely addressing constitutional issues, the Court remands to allow the AG the opportunity to clearly and specifically state the authority granted to the SAAG.

(2) As to claims for which the SAAG has authority, the language of the bill approves of grantees' conduct if it is consistent with the federal Title X program. Section 10.705 specifically provides that organizations receiving federal funds pursuant to title X may perform any service that must or shall be provided pursuant to that title or the U.S. Department of Health guidelines. New guidelines were published in July 2000. Marketing materials and referrals may be a necessary part of the requirement of full neutral disclosure under Title X. In order to evaluate the effect of these new guidelines, the case is remanded to determine the applicability of Title X to the claims raised in accordance with the express language of section 10.705.

Opinion Author: William Ray Price, Jr., Chief Justice

Opinion Vote: JUDGMENT VACATED AND CASE REMANDED. Limbaugh, White, Holstein, Wolff, and Benton, JJ., and Russell, SP.J., concur. Covington, J., not participating.

Opinion:

I.

Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of the St. Louis Region (collectively, planned parenthood), and Maureen Dempsey, M.D., the director of the Missouri Department of Health (director) appeal the judgment of the Circuit Court of Cole County, Missouri. The circuit court granted declaratory judgment against both planned parenthood and the director, enjoined planned parenthood from receiving state family planning funds, and ordered the funds previously paid out to be returned. The court also enjoined the director from distributing state family planning funds to planned parenthood and ordered her to follow the plain language of the appropriations bill.

The judgment is vacated and the case is remanded.

II. Facts

Each year, the Missouri General Assembly appropriates state funds to the department of health for family planning services. In 1999, the General Assembly enacted section 10.705 (section 10.705) as a part of House Bill No. 10. 1999 Laws of Mo. 127-30. The bill appropriated state funds to the department of health to fund family planning services, pregnancy testing and follow-up services. Section 10.705 required that none of the appropriated family planning funds be expended directly or indirectly to subsidize abortion services or abortion-related administrative expenses.

Section 10.705 forbids organizations that receive state family planning funds from directly referring patients to abortion service providers, including agencies affiliated with them. It also forbids recipient organizations from displaying or distributing marketing materials about abortion services. Under section 10.705, an organization that is affiliated with an abortion service provider could receive funds so long as it was independent from the abortion service provider based on name, shared facilities, shared expenses, shared employees or shared supplies and equipment.

In June 1999, the director entered into contract amendments with planned parenthood. The amendments extended the department of health's then existing family planning services contract with planned parenthood. The contract extension contained clauses that required the organizations receiving the funds to not have the same name as an abortion provider, to not share medical facilities with an abortion provider, and to not share expenses, employees, or equipment and supplies with an abortion provider. Planned parenthood received funds under the contract and section 10.705.

Planned parenthood filed suit in the United States District Court for the Western District of Missouri challenging the constitutionality of section 10.705.1 At the request of the Missouri General Assembly, the attorney general appointed Jordan B. Cherrick as a special assistant attorney general (SAAG) to represent the State in the federal lawsuit.On July 1, 1999, the attorney general sent Mr. Cherrick an engagement letter. The letter stated, "You are hereby appointed as a special assistant attorney general for the purpose of filing a motion to intervene as a defendant in [Planned Parenthood v. Dempsey]. Should that motion be granted, your appointment would continue for purposes of defending against Planned Parenthood's challenge to the constitutionality of [section] 10.705."

The SAAG moved to intervene in the federal suit to defend the constitutionality of section 10.705. The SAAG also filed this suit on behalf of the State in the state circuit court. In the state action, the SAAG asked for: 1) a declaration that section 10.705 is constitutional under the United States Constitution and the Missouri Constitution; 2) a declaration that section 10.705 did not incorporate any Missouri corporations statutes concerning "same" or "similar" name; and 3) a declaration that planned parenthood was ineligible to receive state family planning funds under section 10.705. The SAAG also moved to enjoin planned parenthood from receiving any state family planning funds and asked the circuit court to issue a temporary restraining order precluding planned parenthood from receiving state family planning funds. The SAAG also sought return of the funds that planned parenthood had already received. Planned parenthood filed a motion in the federal court asking that court to abstain and stay the federal case until the state case had been resolved. The federal court granted the abstention motion and the stay.

In the state case, planned parenthood filed a motion to join the director as a necessary party defendant to the action. The director consented, and the SAAG did not object. The director is represented by the attorney general pursuant to section 27.050, RSMo 1994. The SAAG amended his complaint to include claims against the director, seeking a declaratory judgment and injunctive relief to prevent the director from distributing funds to planned parenthood.

On July 6, 1999, the attorney general sent Mr. Cherrick another letter regarding his appointment. In this second letter the attorney general noted, "[Y]ou have filed various documents in this case without consulting with either the Senate Administration Committee or this office. Also, I have been informed that you have taken positions in those filings that may not be consistent with the position of the Committee."

On July 29, 1999, the attorney general sent Mr. Cherrick a third letter. This letter withdrew the July 1 appointment. It re-appointed Mr. Cherrick as SAAG but contained clearer limits on the scope of the appointment. The July 29 letter stated, "[Y]ou are hereby appointed as a special assistant attorney general for the purpose of filing a motion to intervene on behalf of the State of Missouri in [planned parenthood's constitutional challenge to section 10.705 in federal court]. Should that motion be granted, your appointment would continue for purposes of defending the constitutionality of House Bill 10, [section] 10.705 in the above referenced case." The letter also informed Mr. Cherrick that he was "also appointed as a special assistant attorney general for the limited purpose of pursuing an action in a circuit court of the State of Missouri, on behalf of the State of Missouri, against planned parenthood challenging planned parenthood's right to receive family planning funds under House Bill 10, [section] 10.705 and to defend the constitutionality of House Bill 10, [section] 10.705." The attorney general added, "Your appointment does not authorize you to file an action against the director or any other state official in state court." The SAAG did not drop any of his state court claims against the director.

On November 16, 1999, the circuit court entered judgment in favor of the State. The court ruled that planned parenthood is ineligible to receive state family planning funds because it refers patients directly to abortion service providers, distributes marketing materials about abortion services, shares a...

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