The reversal of the Heffner decision generated a wide range of comments, but those made by Wilson Beebe resonated most with our initial review of the decision. The lower court decision was based on a challenge that the Pennsylvania Funeral Law was unconstitutional on its face. A law can also be challenged as unconstitutional because of the manner in which it is applied. The “facial” challenge of a law has far greater consequence because if successful, the entire law is invalidated. The Supreme Court has expressed concerns how the facial challenge might be used to undermine the legislative process, and accordingly, the challenging party is held to a higher standard of proof: To succeed in a typical facial attack, [the respondent] would have to establish “that no set of circumstances exists under which [the statute] would be valid”, United States v. Salerno, 481 U.S. 739, 745 (1987). Put another way, the challenge will fail if the law serves a single legitimate purpose. The higher standard of proof is to avoid the courts being used to erase a law that the aggrieved could not otherwise change through the legislative process.
As witnessed in Pennsylvania and Wisconsin, competing economic interests are the cause for most death care legislation never advancing out of its assigned committee. The competing interests need not be as large and divisive as common property ownership and preneed solicitation. On its face, the bill recently introduced for the Missouri Funeral Directors and Embalmers Association might seem non-controversial. But, SB883 steps on the toes of large preneed sellers and preneed insurance carriers. One section of the bill would reduce the window for trust deposits from 60 days to 30 days (requiring sellers to make deposits before internal accounting reconciliations are performed). Another section would impose preneed contract requirements on insurance assignments that insurance companies are challenging as being outside the current law. Not looking to take sides in an internal industry dispute, legislators pull back from such proposals until a consensus is worked out. And then, regulatory approval may also be required.
While anyone can derail a death care bill, associations closely aligned with their regulator have a definite advantage in getting bills through the legislative process. As a facial challenge to the entire Pennsylvania Funeral Law, the Heffner decision threatened the foundation of the PFDA, and similarly positioned funeral associations.