TO: Honorable Members of the Missouri Senate
RE: SS#2 SCS SB 389
DATE: February 15, 2007
Missouri Right to Life has been told that certain revisions of SCS SB 389 are contained in Senate Substitute #2. To the extent that SS #2 as offered includes language that we have examined in draft form, it fails to cure the overarching problems that are caused by Amendment 2 (Art. III, Sec. 38(d) of the Missouri Constitution) in respect to pro-life protections.
Subsection 7 of section 173.475 attempts to limit disbursements of MOHELA sale proceeds for life science projects to those projects that are eligible for federal funding. Unfortunately, four different provisions of Amendment 2 nullify this restriction. Three of them were described in the memorandum that Missouri Right to Life disseminated on February 12 (subsections 5, 7, and 2(7) of Art. III, Sec. 38(d)), and we are confident that those provisions nullify the restriction to eligibility for federal funding just as they invalidate the attempt to exclude certain buildings from the list of capital projects.
The fourth provision that nullifies the proposed restriction is found in
connection with the clause in Amendment 2, subsection 2, that says (in the
relevant portion), "any stem cell research permitted under federal
law may be conducted in Missouri . . . subject to the requirements of federal
law . . ." At first blush, this language suggests
that the restriction limiting research to what is federally-funded is enforceable. The
language seems to imply that whatever is not federally funded is not "permitted
under federal law." However, as with so many other things in
Amendment 2, there is a definition at the end of the Amendment that takes
away the substance of what is said earlier in the Amendment.
(8) 'Permitted under federal law' means, as it relates to stem cell research
and stem cell therapies and cures, any such research, therapies, and cures
that are not prohibited under federal law from being conducted or provided,
regardless of whether federal funds are made available for such activities.
8 of section 173.475 is also proposed as pro-life protection. It says
that if the courts declare any of the foregoing provisions of section 173.475
null and void, then all the provisions that authorize the MOHELA sale will
be null and void. This restriction, like the others, fails to take
into account the over-arching authority of Amendment 2 as a provision of
the Constitution. The very clause that says the other parts of section
173.475 would become null and void would constitute a restriction or limitation
on funding for "stem cell research" under Amendment 2, and so
it would be struck down and the deal would proceed.
Amendment 2, in essence, operates like the other states' probate laws. Its overarching nullifications of restrictions effectively prohibit an "in terrorem" clause in connection with the allocation of money by the state. The courts will see that the "in terrorem" clause operates to keep money from institutions that would otherwise get it, and the courts will be compelled by Amendment 2 to strike down the "in terrorem" clause from SB 389 along with the other restrictions on the uses of MOHELA money. Amendment 2 binds the courts to hold the “in terrorem” clause unconstitutional for the same reasons as it invalidates the exclusion of certain building projects.
There are many additional problems in section 173.475 of SCS SB 389, including the ambiguous description, instability, and unenforceability of the resolution of the Missouri Development Finance Board and the cooperation agreement that are referred to in the section. There is no need to discuss the statutory problems here in view of the paramount constitutional problems created by Amendment 2. Missouri Right to Life remains opposed to the MOHELA sale portion of SB 389 as it is presently configured.