SUPREME COURT OF MISSOURI

en banc

PLANNED PARENTHOOD OF ) Opinion issued June 30, 2020

ST. LOUIS REGION, ET AL., )

)

Respondents, )

)

v. ) No. SC98020

)

DEPARTMENT OF SOCIAL SERVICES, )

DIVISION OF MEDICAL SERVICES, )

ET AL., )

)

Appellants. )

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 HealthNet Division of the 

Missouri Department of Social Services “shall” make payments to authorized providers 

“on behalf of” Medicaid-eligible individuals for “physicians’ services” and “[f]amily 

planning.” Notwithstanding 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 for these services during FY2019 due to section 11.800 of the FY2019 

appropriation bill. This provision states: “No funds shall be expended to any abortion 

facility as defined in Section 188.015, RSMo, or any affiliate or associate thereof.” 

House Bill No. 2011 (“HB2011”), § 11.800 (2018). 

Planned Parenthood challenged the constitutional validity of section 11.800 of 

HB2011, claiming it is impermissible to use an appropriation bill to amend substantive 

law (i.e., §§ 208.153.2 and 208.152.1(6), (12)) because this violates article III, section 23

of the Missouri Constitution. 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 Court is whether there is a direct conflict between: (a)

the language of sections 208.153.2 and 208.152.1(6), (12) requiring MO HealthNet to 

pay its authorized providers (including Planned Parenthood) for covered physicians’

services and family planning provided to Medicaid-eligible individuals; and (b) the 

language of section 11.800 of HB2011 prohibiting MO HealthNet from doing so. If there 

is such a direct conflict, section 11.800 is invalid because article III, section 23 of the 

Missouri Constitution prohibits using an appropriation bill to amend a substantive statute. 

 2 Also appealing are the Missouri 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 judgment found such a conflict and declared section 11.800 

invalid. The circuit court concluded this unconstitutional section should be severed, 

leaving the remainder of HB2011 unaffected. This Court agrees, and the circuit court’s 

judgment in this respect is affirmed.

Background

 Missouri’s Medicaid program is known as MO HealthNet, and it is administered 

by the MO HealthNet Division 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 ... for the 

following:

...

(6) Physicians’ services, whether furnished in the office, home, hospital, 

nursing home, or elsewhere;

...

(12) Family planning as defined by federal rules and regulations; 

provided, however, that such family planning services shall not include 

abortions unless such abortions are certified in writing by a physician to the 

MO HealthNet agency that, in the physician’s professional judgment, 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 Medicaid eligible person receiving the services, but they are made to 

the authorized provider from which the eligible person received the services. Section

208.153.1 further provides, “Any person entitled to MO HealthNet benefits may obtain it 

from 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 division.” 

[Emphasis added.]
4

MO HealthNet concedes that it has authorized Planned Parenthood to provide 

physicians’ services and family planning to Medicaid-eligible individuals 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 physician services and related services including, but not limited to, ... family 

planning services under the MO HealthNet fee-for-service program[.]” See HB2011, 

§ 11.455. This time, however, the General Assembly added section 11.800 to the 

MO HealthNet appropriation bill, 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 of this act: No funds shall be expended to any abortion facility as defined 

in Section 188.015, RSMo[3]

, or any affiliate or associate thereof.

As a result of this language,4 MO HealthNet notified Planned Parenthood that it was 

prohibited from making any payments to Planned Parenthood for physician or family 

planning services rendered to Medicaid-eligible individuals during FY2019.5

 3 Section 188.015(2) provides, “‘Abortion facility’, a clinic, physician’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 Part 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 

Commission (“AHC”). The AHC issued decisions in favor of MO HealthNet but noted it 

lacked authority to address Planned Parenthood’s constitutional challenges. Planned 

Parenthood then sought consolidated judicial review of the AHC decisions in the St. 

Louis City Circuit Court. The circuit court entered judgment for Planned Parenthood, 

declaring that section 11.800 of HB2011 violates article III, section 23 of the Missouri 

Constitution and severing that provision from the remainder of HB2011.6 The circuit 

 

MO HealthNet nor Planned Parenthood 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 likely will 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 Part 1 

and Part 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 House Bill No. 2011 (2020), § 11.930 

(same). That language is subject to the same constitutional 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 

this Court affirms the circuit court’s judgment that section 11.800 is unconstitutional 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 

unconstitutional under article IV, section 23 is hereby vacated. In addition, the circuit court 

rejected Planned Parenthood’s other claims, but Planned Parenthood 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 challenges both of these 

determinations in its appeal to this Court.

Analysis

“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 presumption of constitutionality.” 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 legislature.” 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 

inform our decision-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 uphold the constitutional validity of an act passed by the 

General Assembly unless the act “clearly and undoubtedly” violates a constitutional 

limitation. Hammerschmidt, 877 S.W.2d at 102.

Article III, section 23 provides, “No bill shall contain more than one subject which 

shall be clearly expressed in its title, except bills enacted under the third exception 
7

in section 37 of this article and general appropriation 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 prohibition for appropriation bills because such bills necessarily include multiple 

subjects, i.e., appropriations of differing amounts from differing accounts for differing 

subjects.

But to keep the narrow exception for “general appropriation bills” from 

swallowing the broad prohibition against bills containing multiple 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 1995)

(emphasis added). In other words, any bill that purports to combine appropriations with 

the enactment or amendment of general or substantive law necessarily contains more than 

one subject in violation of article III, section 23, and such a bill does not fall within the 

exception for “general appropriation 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 general 

statute such as section 13525, and the mere appropriation of money are two entirely 

different and separate subjects.”).

In State ex rel. Hueller v. Thompson, 289 S.W. 338, 340-41 (Mo. banc 1926), this 

Court explained:

An appropriation bill is just what 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 unconstitutional and void[.]

Three generations later, Rolla 31 School District reaffirmed that the inclusion of 

substantive legislation in an appropriations bill is among the evils the single subject 

requirement in article III, section 23 was meant to prevent.

The Davis court [held] that the act appropriating $3,000 from the general 

revenue fund to the Board of Barber Examiners 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 constitutional limitation, which provides that no bill shall contain 

more than one subject and limits appropriation bills to appropriations only, 

is still good law.

Rolla 31 Sch. Dist., 837 S.W.2d at 4 (emphasis added). The Court explained, however, 

that it takes more than some mere inconsistency between an express appropriation and 

the entire body of general law to constitute a single subject violation. 

The holding in Davis 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 legislature’s 

intention in adopting the general statute.

Id. (emphasis added).7

Accordingly, the issue before this Court is whether section 11.800 violates the 

single subject requirement in article III, section 23 of the Missouri Constitution. If 

section 11.800 of the FY2019 appropriation bill HB2011 is in direct conflict with 

sections 208.153.1 and 208.152.1(6), (12), then it is an attempt to amend those general 

statutes and is unconstitutional because HB2011 contains multiple subjects, i.e., 

appropriations and amendments to substantive law. On 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 judgment declaring 

section 11.800 to be unconstitutional 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, 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-mandated 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 (1936). Because the rot of state-mandated racial segregation infests the entirety of this 

Court’s Gaines decision, it is repudiated in its entirety and, henceforth, should no longer be cited 

even for the most otherwise unimpeachable legal principles.
10

Constitution. Planned Parenthood properly raised this claim first in the AHC, which 

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 reassert it in its 

petitions for judicial review of the AHC’s determinations. As a result, even though this 

Court ordinarily reviews the decision of the AHC in appeals concerning petitions for 

judicial review, this Court reviews the decision of the circuit court when the claim 

involves a question the AHC could not decide, i.e., a claim that a statute is 

unconstitutional. Id.

The Court 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 unambiguously 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-eligible individuals for “physicians’ services” and “family planning.” Even 

though section 208.152 provides only that payments shall be made “on behalf of” 

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 conclusion. 

Specifically, 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 upon which uncovered, non-Medicaid services an authorized provider also 

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 bill 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 bill. 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 

violation of the proscription in article III, section 23 of the Missouri Constitution against 

bills with multiple subjects.
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., all 

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 prohibition 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-eligible 

individuals. But section 208.153 unambiguously provides that the only limitation is that 

the health care provider be authorized by an agreement with the MO HealthNet Division 

to do so. See § 208.153.1 (“Any person entitled to MO HealthNet benefits may obtain it 

from 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 division.”) 

(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 – conditions 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-eligible individual 

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

general law provisions in sections 208.153.1 and 208.152.1(6), (12) fail.8 If the General 

Assembly wants to change the conditions that must be met to be an authorized provider 

of MO HealthNet services, it must do so by amending the statutes in which those 

conditions are found – and article III, section 23 prohibits a bill whose subject is 

appropriations from also being used for that purpose. Until a proper amendment 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 eligible to receive 

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 Program 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 

relies so 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 prohibition against special 

laws. 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 

industrial relations] can appoint, but it may not [use an appropriation bill to] dictate who will fill 

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-eligible 
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 funding 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 constitution 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 legal principles do not 

resolve the present case. Here, the General Assembly chose to appropriate nearly $400 

million for, among other things, providing physicians’ services and family planning to 

Medicaid-eligible individuals in section 11.455 of HB2011. This was one of presumably 

thousands of difficult decisions made each year during the appropriations process. But, 

having made this decision, 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 bill to 

amend such general laws necessarily runs afoul of the multiple subject prohibition in 

article III, section 23 of the Missouri Constitution. 

 

individuals, and the General Assembly cannot circumvent those statutes by inserting new 

limitations in an appropriation bill.
15

II. Section 11.800 Is Properly Severed from HB2011

It is imprecise to say this or that section or phrase in a bill violates the single 

subject requirement in article III, section 23 of the Missouri Constitution. This 

requirement applies to entire bills, and a bill either complies or it does not. Nevertheless, 

this Court routinely engages in a severance analysis to determine whether it is proper to 

strike only the provisions that caused the single subject violation and leave the remainder 

of the bill in effect. See, e.g., Hueller, 289 S.W. at 341 (declaring only the offending 

portion of the appropriation bill “unconstitutional and void”) (emphasis added). Here, 

the circuit court determined severance was appropriate but relied upon section 1.140 to 

do so. The reliance on this statute was incorrect, as this Court has explained in the past:

It is important to note that this Court applies a different severance analysis 

for procedurally unconstitutional statutes than it does for substantively 

unconstitutional statutes. The statutory severability provision, section 

1.140, RSMo Supp. 2011, applies when a provision is unconstitutional in 

substance. While section 1.140 delineates when severance of substantively

unconstitutional provisions is appropriate, it does not support the doctrine 

of severability of bills enacted in violation of the procedural mandates of 

the constitution....

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 constitutional violation raises the 

following question: If all provisions of the bill were passed through an

unconstitutional procedure, should any of the provisions be considered 

valid? Despite this concern, and in due deference to our co-sovereign 

branch of government—which also takes an oath to support the Missouri 

Constitution—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.

Because of the difference between substantive constitutional violations and 

procedural constitutional violations, this Court uses different standards 
16

when evaluating whether invalid provisions may be severed. For 

substantive violations, this Court applies section 1.140 to analyze whether 

severance is appropriate. On the other hand, when evaluating a procedural

constitutional violation, the doctrine of judicial severance is applied and 

severance is only appropriate when this Court is “convinced beyond a 

reasonable doubt” that the legislature would have passed the bill without 

the additional provisions and that the provisions 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 

bill would have become law—and would remain law—even absent the 

procedural violation. If the Court is not convinced beyond a reasonable 

doubt, then the bill as a whole was passed in violation of the constitution 

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 only section included in Part 3 of HB2011, and the General 

Assembly refers to Part 3 elsewhere in HB2011 as “guidance to the Department of Social 

Services in implementing the appropriations 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 Court is convinced 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 judgment of the circuit court is affirmed 

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 HealthNet claims this was error because costs cannot be taxed against the state (or its 

departments, divisions, agencies, or officers in their official capacities) without a specific 

statute authorizing the court to do so. MO HealthNet is correct. Richardson v. State 

Highway & Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. banc 1993) (“Absent statutory 

authority, costs cannot be recovered in state courts from the state of Missouri or its 

agencies or officials.”). No statute authorizes the circuit court to tax costs against the 

state in this action, and the judgment is vacated with respect to this issue.

Planned Parenthood argues the circuit court acted properly under section 

536.087.1, which provides: 

A party who prevails in an agency proceeding or civil action arising 

therefrom, 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 immunity only for unjustified positions 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 petition for judicial review. 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 legal positions 

taken by MO HealthNet were not substantially justified as required by section 536.087.1. 

But nothing indicates this is what the circuit court intended to do, and much suggests it 

was not. To “tax costs” to a non-prevailing party is not the same as to “award” fees and 

expenses to a party who prevails against the state in an administrative proceeding. The 

former is automatic and largely ministerial. See §§ 514.060 (“In all civil actions, or

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 

instituted 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 positions. 

With no indication 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 Court to assume the circuit court was 

acting under section 514.060. That statute is not sufficient 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.

Conclusion

For the reasons set forth above, the portion of the circuit court’s judgment 

declaring section 11.800 of HB2011 to be unconstitutional under the single subject 

requirement in article III, section 23 of the Missouri Constitution and severing that 
19

provision from the remainder of HB2011 is affirmed. The portion of the circuit court’s 

judgment declaring the cross-reference to section 188.015 in section 11.800 of HB2011 

to be unconstitutional under article IV, section 23 of the Missouri Constitution is vacated 

as unnecessary. The portion of the judgment taxing costs to MO HealthNet is reversed.

_____________________________ 

Paul C. Wilson, Judge

Draper, C.J., Russell, Powell, Breckenridge and Stith, JJ., concur; 

Fischer, J., dissents in separate opinion filed.
SUPREME COURT OF MISSOURI

en banc

PLANNED PARENTHOOD OF )

ST. LOUIS REGION, ET AL., )

)

Respondents, )

)

v. ) No. SC98020

)

DEPARTMENT OF SOCIAL SERVICES, )

DIVISION OF MEDICAL SERVICES, )

ET AL., )

)

Appellants. )

DISSENTING OPINION 

I respectfully dissent. In concluding § 11.800 of HB2011 violates article III, § 23 

of the Missouri Constitution, the principal opinion fails to persuade me that the plain and 

unambiguous language of § 23—which exempts appropriation bills from its purview—

does not control the resolution of this case. I also dissent because, even if § 23 does apply 

to appropriation bills, the challenged language 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." (Emphasis 

added). This Court has repeatedly held, when the language of a constitutional provision is 
2

clear and unambiguous, this Court has no other duty than to apply the language of the 

provision as written. State ex rel. Hillman v. Beger, 566 S.W.3d 600, 605 (Mo. banc 2019) 

("If the language of a statute[1] is plain and unambiguous, this Court is bound to apply that 

language as written and may not resort to canons of construction to arrive at a different 

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 unambiguous."); Concerned Parents v. Caruthersville Sch. Dist. 18, 548 S.W.2d 554, 

559 (Mo. banc 1977) (same). 

The principal opinion starts its analysis with the plain language of § 23 and 

acknowledging § 23 "prohibits bills with more than one subject 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 unambiguous language 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 bill that amends a general law necessarily 

contains multiple subjects in violation of § 23. Slip op. at 7-9. By using Rolla 31, Davis, 

 1 "The rules applicable to construction of statutes are applicable to the construction of 

constitutional 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. 
3

and Hueller to justify the application of § 23 to HB2011, instead of the plain language of 

the constitution, the principal opinion puts the cart well before the horse. 

While Rolla 31, Davis, and Hueller generally hold the legislature may not amend 

general laws through appropriation bills, they fail to engage in any meaningful analysis 

tethering that policy proposition to the plain text of § 23. Instead, those cases merely

contain blanket assertions and citations to past cases that explain the perceived good policy 

behind the proposition. See Rolla 31, 837 S.W.2d at 4 ("[Section 23], which provides that 

no bill shall contain more than one subject and limits appropriation bills to appropriations 

only, is still good law."); Davis, 75 S.W.2d at 830 (citing Hueller and stating, "[L]egislatio 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 proposed 

with the threat, too, that, if not assented to and passed, the appropriations would be 

defeated. The possibilities 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 

Pa. 582, 29 A. 297.

Our Constitution [§ 23], is the one certain safeguard against such distracting 

possibilities 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 constitutional analysis; however, that case is legally distinguishable from the present 

one. In Gregg, the Supreme Court of Pennsylvania noted its constitutional 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 
4

Without any textual foundation in the constitution, this Court cannot rely on 

perceived good policy to add words to the clear and unambiguous language of § 23. See 

Indep.-Nat'l Educ. Ass'n v. Indep. Sch. District, 223 S.W.3d 131, 137 (Mo. banc 2007) 

(holding this Court has no authority to add language to constitutional provisions when the 

language written is clear and unambiguous). Even if one accepts the principal opinio n's 

assertion that an appropriation bill that amends a general law contains multiple subjects, I 

still do not agree that § 23 is violated because § 23 expressly allows appropriation bills to 

embrace an unlimited amount of subjects, so long as they relate to the appropriation of 

money. By disregarding the constitution's plain language in favor of policy considerations, 

the principal opinion sets a dangerous precedent in which I cannot acquiesce.

Even if § 23 applied to appropriation bills, and it does not, the challenged language 

in HB2011 remains constitutionally sound because it "embrace[s] the various subjects and 

accounts for which moneys are appropriated." Within the provisions of HB2011, the 

General Assembly appropriated funds "[f]or the purpose of funding physician services and 

related services including, [. . .] family planning services under the MO HealthNet fee-forservice program." HB2011, § 11.455 (2018). In limiting this appropriation, the General 

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 

Pennsylvania had to adopt a second constitutional provision to limit the scope of such bills. 

Because Missouri's Constitution does not have a provision mirroring Pennsylvania's Article III, 

section 15, Gregg's reasoning cannot be imported to Rolla 31, Davis, and Hueller.
5

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 associate 

thereof." HB2011, § 11.800(2018). Section 23 is not ambiguous; therefore, this Court 

must apply its plain language 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 undeniably 

embraces a subject—the expenditure of funds appropriated for family planning—for which 

the General Assembly appropriated funds. As such, § 11.800 does not violate § 23.

This analysis 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 following 

language ("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 

remains in this office or is in any 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. (internal quotation omitted). 
6

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 main 

purpose of the proviso is the removal of [Tolerton] from the office of game and fish 

commissioner" it ultimately held: 

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 sufficiently natural connection therewith as not to be misleading 

and as not to conflict with the section of the Constitution concerning the title 

of a legislative bill.

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 evident § 11.800 has a 

natural connection to the General Assembly's appropriation of money for family planning

and is, therefore, constitutional.4 

___________________________

Zel M. Fischer, Judge

 4 This Court has used different phrases to describe the test that determines whether a bill violates 

§ 23. See Calzone v. Interim Comm'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 natural 

connection with, or are a means to accomplish the subject of the bill as expressed in the title.") 

(internal quotations omitted); see also Hammerschmidt 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.