Respondents, two Missouri-licensed physicians, brought this
action for injunctive relief and a declaration of the
unconstitutionality of a Missouri statute that excludes abortions
that are not "medically indicated" from the purposes for which
Medicaid benefits are available to needy persons. In response to
petitioner's pre-answer motion to dismiss, each respondent averred
that he had provided, and anticipated providing, abortions to needy
patients, and that petitioner, the responsible state official,
acting in reliance on the challenged statute, had refused all
Medicaid applications filed in connection with such abortions. A
three-judge District Court dismissed the relevant count of the
complaint for lack of standing, having concluded that no logical
nexus existed between the status asserted by respondents and the
claim that they sought to have adjudicated. The Court of Appeals
reversed, finding that respondents had alleged sufficient "injury
in fact" and also an interest "arguably within the zone of
interests to be protected . . . by the . . . constitutional
guarantees in question." That court then considered the case on the
merits and found that the challenged statute clearly violated the
Equal Protection Clause.
Held: The judgment is reversed, and the case is
remanded. Pp.
428 U. S.
112-121;
428 U. S.
121-122;
428 U. S.
122.
508 F.2d 1211, reversed and remanded.
MR. JUSTICES BLACKMUN delivered the opinion of the Court with
respect to Parts I, II-A, and III, finding that:
1. Respondents had standing to maintain this suit. Respondents
alleged "injury in fact,"
i.e., a sufficiently concrete
interest in the outcome of their suit to make it a case or
controversy subject to the District Court's Art. III jurisdiction.
If respondent physicians prevail in their suit to remove the
statutory limitation on reimbursable abortions, they will benefit
by receiving
Page 428 U. S. 107
payment for the abortions and the State will be out of pocket by
the amount of the payments. Pp.
428 U. S.
112-113.
2. The Court of Appeals should not have proceeded to resolve the
merits of this case, since petitioner, who has not filed an answer
or other pleading addressed to the merits, has not had the
opportunity to present evidence or legal arguments in defense of
the statute. Pp.
428 U. S.
119-121.
MR. JUSTICE BLACKMUN, joined by MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL, concluded, in Part II-B, that, as
a prudential matter, respondents are proper proponents of the
particular rights on which they base their suit. Though
"[o]rdinarily, one may not claim standing . . . to vindicate the
constitutional rights of some third party,"
Barrows v.
Jackson, 346 U. S. 249,
346 U. S. 255,
here the underlying justification for that rule is absent. A woman
cannot safely secure an abortion without a physician's aid, and an
impecunious woman cannot easily secure an abortion without the
physician's being paid by the State. Aside from the woman herself,
the physician is uniquely qualified, by virtue of his confidential,
professional relationship with her, to litigate the
constitutionality of the State's interference with, or
discrimination against, the abortion decision. Moreover, there are
obstacles to the woman's assertion of her own rights, in that the
desire to protect her privacy may deter her from herself bringing
suit, and her claim will soon become at least technically moot if
her indigency forces her to forgo the abortion. Pp.
428 U. S.
113-118.
BLACKMUN, J., announced the judgment of the Court and delivered
an opinion of the Court with respect to Parts I, II-A, and III, in
which all Members joined, and in which, as to Part II-B, BRENNAN,
WHITE, and MARSHALL, JJ., joined. STEVENS, J., filed an opinion
concurring in part,
post, p.
428 U. S. 121.
POWELL, J., filed an opinion concurring in part and dissenting in
part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ.,
joined,
post, p.
428 U. S.
122.
Page 428 U. S. 108
MR. JUSTICE BLACKMUN delivered the opinion of the Court (Parts
I, II-A, and III) together with an opinion (Part II-B), in which
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL
joined.
Like its companions, [
Footnote
1] this case involves a claim of a State's unconstitutional
interference with the decision to terminate pregnancy. The
particular object of the challenge is a Missouri statute excluding
abortions that are not "medically indicated" from the purposes for
which Medicaid benefits are available to needy persons. In its
present posture, however, the case presents two issues not going to
the merits of this dispute. The first is whether the plaintiff
appellees, as physicians who perform nonmedically indicated
abortions, have standing to maintain the suit, to which we answer
that they do. The second is whether the Court of Appeals,
exercising jurisdiction because the suit had been dismissed in the
District Court for lack of standing, properly proceeded to a
determination of the merits, to which we answer that it did
not.
I
Missouri participates in the so-called Medicaid program, under
which the Federal Government partially underwrites qualifying state
plans for medical assistance to the needy.
See 42 U.S.C. §
1396
et seq. (1970 ed. and Supp. IV). Missouri's plan,
which is set out in Mo.Rev.Stat. §§ 208.151-208.158 (Supp. 1975),
includes, in § 208.152, a list of 12 categories of medical services
that are eligible for Medicaid funding. The last is:
"(12) Family planning services as defined by federal rules and
regulations; provided, however, that such family planning services
shall not include
Page 428 U. S. 109
abortions unless such abortions are medically indicated."
This provision is the subject of the litigation before us.
[
Footnote 2]
The suit was filed in the United States District Court for the
Eastern District of Missouri by two Missouri-licensed physicians.
Each plaintiff avers, in an affidavit filed in opposition to a
motion to dismiss, that he "has provided, and anticipates providing
abortions to welfare patients who are eligible for Medicaid
payments." App. 32, 36. [
Footnote
3] The plaintiffs further allege in their affidavits that all
Medicaid applications filed in connection with abortions performed
by them have been refused by the defendant, who is the responsible
state official, [
Footnote 4] in
reliance on the challenged § 208.152(12). App. 32, 36. It is not
entirely clear who has filed these applications. One affiant states
that "he and [his] patients have been refused,"
id. at 32;
the other refers to "those who have submitted applications for such
payments on his behalf," and states that such "payments have been
refused."
Id. at 36. Indeed, it is not entirely clear to
whom the payments would go if they were made. We assume, however,
from the statute's several references to payments "on behalf of"
eligible persons,
see §§ 208.151 and 208.152, that the
provider of the services himself seeks
Page 428 U. S. 110
reimbursement from the State. In any event, each plaintiff
states that he anticipates further refusals by the defendant to
fund nonmedically indicated abortions. Each avers that such
refusals
"deter [him] from the practice of medicine in the manner he
considers to be most expertise [
sic] and beneficial for
said patients . . . and chill and thwart the ordinary and customary
functioning of the doctor-patient relationship."
App. 32, 36.
The complaint sought a declaration of the statute's invalidity
and an injunction against its enforcement. A number of grounds were
stated, among them that the statute, "on its face and as applied,"
is unconstitutionally vague, "[d]eprives plaintiffs of their right
to practice medicine according to the highest standards of medical
practice"; "[d]eprives plaintiffs' patients of the fundamental
right of a woman to determine for herself whether to bear
children"; "[i]nfringes upon plaintiffs' right to render and their
patients' right to receive safe and adequate medical advice and
treatment"; and "[d]eprives plaintiffs and their patients, each in
their own classification, of the equal protection of the laws."
Id. at 16, 12-13.
The defendant's sole pleading in District Court was a pre-answer
motion to dismiss. Dismissal was sought upon several alternative
grounds: that there was no case or controversy; that the plaintiffs
lacked "standing to litigate the constitutional issues raised";
that injunctive relief "cannot be granted" because of absence of
"irreparable harm" to the plaintiffs; that the plaintiffs
"personally could suffer no harm"; and that, in any case, they
"cannot litigate the alleged deprivation or infringement of the
civil rights of their welfare patients."
Id. at 225.
The plaintiffs having responded to this motion with a memorandum
and also with the affidavits described
Page 428 U. S. 111
above, the three-judge panel that had been convened to hear the
case dismissed the count now before us "for lack of standing." The
court saw no "logical nexus between the status asserted by the
plaintiffs and the claim they seek to have adjudicated."
Wulff
v. State Bd. of Registration for Healing Arts, 380 F.
Supp. 1137, 1144 (1974).
The United States Court of Appeals for the Eighth Circuit
reversed. 508 F.2d 1211 (1974). It reasoned that
Roe v.
Wade, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973), as interpreted in several of its own
earlier decisions, had "
paved the way for physicians to assert
their constitutional rights to practice medicine,'" citing
Nyberg v. City of Virginia, 495 F.2d 1342, 1344 (CA8),
appeal dismissed and cert. denied, 419 U.S. 891 (1974).
Those rights were said to include "`the right to advise and perform
abortions,'" and furthermore to be "`inextricably bound up with the
privacy rights of women who seek abortions.'" 508 F.2d at 1213.
Clearly, the restriction of Medicaid benefits affected the
plaintiff physicians "both professionally and monetarily."
Id. at 1214. The result, in the Court of Appeals' view,
was that they had alleged sufficient "`injury in fact,'" and also
an interest "`arguably within the zone of interests to be protected
. . . by the . . . constitutional guarantee in question,'"
ibid., quoting Data Processing Service v. Camp,
397 U. S. 150,
397 U. S. 153
(1970).
Although it found the matter "not without its difficulty," 508
F.2d at 1214, the Court of Appeals next concluded that, being
"urged by appellants" (respondents here), it should proceed from
the standing question to the merits of the case. This, rather than
a remand, it considered proper because the question of the
statute's validity could not profit from further refinement, and
indeed was one whose answer was in no doubt. The
Page 428 U. S. 112
statute was "obviously unconstitutional," and it therefore
appeared "that the case might well have been decided by one federal
judge."
Id. at 1215. The court, accordingly, chose "to
make final determination of this case."
Ibid. Proceeding
to the merits, the court found a "clear violation of the Equal
Protection Clause."
Ibid. The statute constituted a
"special regulation on abortion," and discriminated against both
the patient and the physician "by reason of the patient's poverty."
Id. at 1215-1216. Section 208.152(12) was therefore
declared unconstitutional by the Court of Appeals. Injunctive
relief was felt to be unnecessary, it being assumed that the State
would comply with the declaration and cease any discrimination
between needy patients seeking therapeutic and nontherapeutic
abortions. 508 F.2d at 1213-1216. We granted certiorari, limited to
the two questions identified in the opening paragraph of this
opinion. 422 U.S. 1041 (1975).
II
Although we are not certain that they have been clearly
separated in the District Court's and Court of Appeals' opinions,
two distinct standing questions are presented. We have
distinguished them in prior cases,
e.g., Data Processing
Service v. Camp, 397 U.S. at
397 U. S.
152-153;
Flast v. Cohen, 392 U. S.
83,
392 U. S. 99, n.
20 (1968);
Barrows v. Jackson, 346 U.
S. 249,
346 U. S. 255
(1953), and they are these: first, whether the plaintiff
respondents allege "injury in fact," that is, a sufficiently
concrete interest in the outcome of their suit to make it a case or
controversy subject to a federal court's Art. III jurisdiction,
and, second, whether, as a prudential matter, the plaintiff
respondents are proper proponents of the particular legal rights on
which they base their suit.
A. The first of these questions needs little comment, for there
is no doubt now that the respondent physicians
Page 428 U. S. 113
suffer concrete injury from the operation of the challenged
statute. Their complaint and affidavits, described above, allege
that they have performed and will continue to perform operations
for which they would be reimbursed under the Medicaid program were
it not for the limitation of reimbursable abortions to those that
are "medically indicated." If the physicians prevail in their suit
to remove this limitation, they will benefit, for they will then
receive payment for the abortions. The State (and Federal
Government) will be out of pocket by the amount of the payments.
The relationship between the parties is classically adverse, and
there clearly exists between them a case or controversy in the
constitutional sense.
Simon v. Eastern Ky. Welfare Rights
Org., 426 U. S. 26,
426 U. S. 37-39
(1976);
Investment Co. Institute v. Camp, 401 U.
S. 617,
401 U. S.
620-621 (1971);
Data Processing Service v.
Camp, 397 U.S. at
397 U. S.
151-156.
B. The question of what rights the doctors may assert in seeking
to resolve that controversy is more difficult. The Court of Appeals
adverted to what it perceived to be the doctor's own
"constitutional rights to practice medicine." 508 F.2d at 1213. We
have no occasion to decide whether such rights exist. Assuming that
they do, the doctors, of course, can assert them. It appears,
however, that the Court of Appeals also accorded the doctors
standing to assert, and indeed granted them relief based partly
upon, the rights of their patients. We must decide whether this
assertion of
jus tertii was a proper one.
Federal courts must hesitate before resolving a controversy,
even one within their constitutional power to resolve, on the basis
of the rights of third persons not parties to the litigation. The
reasons are two. First, the courts should not adjudicate such
rights unnecessarily, and it may be that, in fact, the holders of
those
Page 428 U. S. 114
rights either do not wish to assert them or will be able to
enjoy them regardless of whether the in court litigant is
successful or not.
See Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
345-348 (1936) (Brandeis, J., concurring) (offering the
standing requirement as one means by which courts avoid unnecessary
constitutional adjudications). Second, third parties themselves
usually will be the best proponents of their own rights. The courts
depend on effective advocacy, and therefore should prefer to
construe legal rights only when the most effective advocates of
those rights are before them. The holders of the rights may have a
like preference, to the extent they will be bound by the courts'
decisions under the doctrine of
stare decisis. See,
e.g., Baker v Carr, 369 U. S. 186,
369 U. S. 204
(1962) (standing requirement aimed at "assur[ing] that concrete
adverseness which sharpens the presentation of the issues upon
which the court so largely depends");
Holden v. Hardy,
169 U. S. 366,
169 U. S. 397
(1898) (assertion of third parties' rights would come with "greater
cogency" from the third parties themselves). These two
considerations underlie the Court's general rule: "Ordinarily, one
may not claim standing in this Court to vindicate the
constitutional rights of some third party."
Barrows v.
Jackson, 346 U.S. at
346 U. S. 255.
See also Flast v. Cohen, 392 U.S. at
392 U. S. 99 n.
20;
McGowan v. Maryland, 366 U. S. 420,
366 U. S. 429
(1961).
Like any general rule, however, this one should not be applied
where its underlying justifications are absent. With this in mind,
the Court has looked primarily to two factual elements to determine
whether the rule should apply in a particular case. The first is
the relationship of the litigant to the person whose right he seeks
to assert. If the enjoyment of the right is inextricably bound up
with the activity the litigant wishes to pursue, the court at least
can be sure that its construction of
Page 428 U. S. 115
the right is not unnecessary in the sense that the right's
enjoyment will be unaffected by the outcome of the suit.
Furthermore, the relationship between the litigant and the third
party may be such that the former is fully, or very nearly, as
effective a proponent of the right as the latter. Thus, in
Griswold v. Connecticut, 381 U. S. 479
(1965), where two persons had been convicted of giving advice on
contraception, the Court permitted the defendants, one of whom was
a licensed physician, to assert the privacy rights of the married
persons whom they advised. The Court pointed to the "confidential"
nature of the relationship between the defendants and the married
persons, and reasoned that the rights of the latter were "likely to
be diluted or adversely affected" if they could not be asserted in
such a case.
Id. at
381 U. S. 481.
See also Eisenstadt v. Baird, 405 U.
S. 438,
405 U. S. 445
446 (1972) (stressing "advocate" relationship and "impact of the
litigation on the third-party interests");
Barrows v.
Jackson, 346 U.S. at
346 U. S. 259
(owner of real estate subject to racial covenant granted standing
to challenge such covenant in part because she was "the one in
whose charge and keeping repose[d] the power to continue to use her
property to discriminate or to discontinue such use"). A
doctor-patient relationship similar to that in
Griswold
existed in
Doe v. Bolton, where the Court also permitted
physicians to assert the rights of their patients. [
Footnote 5] 410 U.S. at
410 U. S.
188-189. Indeed, since that right was the right to an
abortion,
Doe would flatly control the instant case were
it not for the fact that, there, the physicians were seeking
protection from possible criminal prosecution.
The other factual element to which the Court has looked is the
ability of the third party to assert his own
Page 428 U. S. 116
right. Even where the relationship is close, the reasons for
requiring persons to assert their own rights will generally still
apply. If there is some genuine obstacle to such assertion,
however, the third party's absence from court loses its tendency to
suggest that his right is not truly at stake, or truly important to
him, and the party who is in court becomes, by default, the right's
best available proponent. Thus, in
NAACP v. Alabama,
357 U. S. 449
(1958), the Court held that the National Association for the
Advancement of Colored People, in resisting a court order that it
divulge the names of it members, could assert the First and
Fourteenth Amendments rights of those members to remain anonymous.
The Court reasoned that
"[t]o require that [the right] be claimed by the members
themselves would result in nullification of the right at the very
moment of its assertion"
Id. at
357 U. S. 459.
See also Eisenstadt v. Baird, 405 U.S. at
405 U. S. 446;
Barrows v. Jackson, 346 U.S. at
346 U. S. 259.
[
Footnote 6]
Page 428 U. S. 117
Application of these principles to the present case quickly
yields its proper result. The closeness of the relationship is
patent, as it was in
Griswold and in
Doe. A woman
cannot safely secure an abortion without the aid of a physician,
and an impecunious woman cannot easily secure an abortion without
the physician's being paid by the State. The woman's exercise of
her right to an abortion, whatever its dimension, is therefore
necessarily at stake here. Moreover, the constitutionally protected
abortion decision is one in which the physician is intimately
involved.
See Roe v. Wade, 410 U.S. at
410 U. S.
153-156. Aside from the woman herself, therefore, the
physician is uniquely qualified to litigate the constitutionality
of the State's interference with, or discrimination against, that
decision.
As to the woman's assertion of her own rights, there are several
obstacles. For one thing, she may be chilled from such assertion by
a desire to protect the very privacy of her decision from the
publicity of a court suit. A second obstacle is the imminent
mootness, at least in the technical sense, of any individual
woman's claim. Only a few months, at the most, after the maturing
of the decision to undergo an abortion, her right thereto will have
been irrevocably lost, assuming, as it seems fair to assume, that,
unless the impecunious woman can establish Medicaid eligibility,
she must forgo abortion. It is true that these obstacles are not
insurmountable. Suit may be brought under a pseudonym, as so
frequently has been done. A woman who is no longer pregnant may
nonetheless retain the right to litigate the point because it is
"
capable of repetition, yet evading review.'" Roe v.
Wade, 410 U.S. at 410 U. S.
124-125. And it may be that a class could be assembled
whose fluid membership always included some women with live claims.
But if the assertion of the right is to be "representative" to
such
Page 428 U. S. 118
an extent anyway, there seems little loss in terms of effective
advocacy from allowing its assertion by a physician.
For these reasons, we conclude that it generally is appropriate
to allow a physician to assert the rights of women patients as
against governmental interference with the abortion decision, and
we decline to restrict our holding to that effect in
Doe
to its purely criminal context. [
Footnote 7] In this respect, the judgment of the Court of
Appeals is affirmed.
Page 428 U. S. 119
III
On this record, we do not agree, however, with the action of the
Court of Appeals in proceeding beyond the issue of standing to a
resolution of the merits of the case. Petitioner urges that this
action was particularly inappropriate because the case is one in
which the requested injunctive relief could be granted or denied on
the merits only by a three-judge district court, with direct appeal
here. We find it unnecessary to reach this contention, or the
respondents' arguments that a three-judge court was not required
because the statute is so patently unconstitutional, and because,
in any event, only declaratory relief is warranted. Quite apart
from these considerations, the Court of Appeals' resolution of the
merits
Page 428 U. S. 120
seems to us to be an unacceptable exercise of its appellate
jurisdiction.
As noted, with respect to the complaint's count that is before
us, petitioner filed in the District Court only a pre-answer motion
to dismiss for lack of standing. He filed no answer, and no other
pleading addressed to the merits. He did answer some
interrogatories, App. 26, but stipulated to no facts, and gave no
intimation of what defenses, if any, he might have other than the
plaintiffs' alleged lack of standing. The District Court granted
his motion to dismiss and no more. That dismissal was the "final
decision" appealed from,
see 28 U.S.C. § 1291, and, on
appeal, petitioner limited himself entirely to the standing
determination that underlay it. In short, petitioner has never been
heard in any way on the merits of the case.
It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below. In
Hormel v. Helvering, 312 U. S. 552,
312 U. S. 556
(1941), the Court explained that this is
"essential in order that parties may have the opportunity to
offer all the evidence they believe relevant to the issues . . .
[and] in order that litigants may not be surprised on appeal by
final decision there of issues upon which they have had no
opportunity to introduce evidence."
We have no idea what evidence, if any, petitioner would, or
could, offer in defense of this statute, but this is only because
petitioner has had no opportunity to proffer such evidence.
Moreover, even assuming that there is no such evidence, petitioner
should have the opportunity to present whatever legal arguments he
may have in defense of the statute. We think he was justified in
not presenting those arguments to the Court of Appeals, and in
assuming, rather, that he would at least be allowed to answer the
complaint, should the Court of Appeals reinstate it.
Page 428 U. S. 121
The matter of what questions may be taken up and resolved for
the first time on appeal is one left primarily to the discretion of
the courts of appeals, to be exercised on the facts of individual
cases. We announce no general rule. Certainly there are
circumstances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the proper
resolution is beyond any doubt,
see Turner v. City of
Memphis, 369 U. S. 350
(1962), or where "injustice might otherwise result."
Hormel v.
Helvering, 312 U.S. at
312 U. S. 557.
[
Footnote 8] Suffice it to say
that this is not such a case. The issue resolved by the Court of
Appeals has never been passed upon in any decision of this Court.
This being so, injustice was more likely to be caused than avoided
by deciding the issue without petitioner's having had an
opportunity to be heard.
Assuming, therefore, that the Court of Appeals had jurisdiction
to proceed to the merits in this case, we hold that it should not
have done so. To that extent, its judgment is reversed, and the
case is remanded with directions that it be returned to the
District Court so that petitioner may file an answer to the
complaint and the litigation proceed accordingly.
It is so ordered.
[
Footnote 1]
Planned Parenthood of Missouri v. Danforth, ante p.
428 U. S. 52,
Bellotti v. Baird, post, p.
428 U. S. 132.
[
Footnote 2]
The complaint contained two additional counts directed against
the Missouri State Board of Registration for the Healing Arts, and
concerning other Missouri statutes relating to abortions upon
minors. The District Court's dismissal of those counts has not been
appealed, and is not now before us.
[
Footnote 3]
Plaintiffs sued on their own behalf and on behalf of the class
of similarly situated physicians. App. 15. Apparently, however, the
suit was dismissed by the District Court before any such class was
certified.
[
Footnote 4]
Defendant Singleton, petitioner herein, is Chief of the Bureau
of Medical Services in the Division of Welfare of Missouri's
Department of Public Health and Welfare.
Id. at 16.
[
Footnote 5]
We have reiterated that holding today in
Planned Parenthood
of Missouri v. Danforth, ante at
428 U. S.
62.
[
Footnote 6]
MR. JUSTICE POWELL objects that such an obstacle is not enough,
that our prior cases allow assertion of third-party rights only
when such assertion by the third parties themselves would be, "in
all practicable terms, impossible."
Post at
428 U. S. 126.
Carefully analyzed, our cases do not go that far. The Negro real
estate purchaser in
Barrows, if he could prove that the
racial covenant alone stood in the way of his purchase (as
presumably he could easily have done, given the amicable posture of
the seller in that case), could surely have sought a declaration of
its invalidity or an injunction against its enforcement. The
Association members in
NAACP v. Alabama could have
obtained a similar declaration or injunction, suing anonymously by
the use of pseudonyms. The recipients of contraceptives in
Eisenstadt (or their counterparts in
Griswold and
Doe, for that matter) could have sought similar relief as
necessary to the enjoyment of their constitutional rights. The
point is not that these were easy alternatives, but that they
differed only in the degree of difficulty, if they differed at all,
from the alternative in this case of the women themselves seeking a
declaration or injunction that would force the State to pay the
doctors for their abortions.
[
Footnote 7]
MR. JUSTICE POWELL would so limit
Doe, and the other
cases cited, explaining them as cases in which the State "directly
interfered with the abortion decision" and "directly interdicted
the normal functioning of the physician-patient relationship by
criminalizing certain procedures."
Post at
428 U. S. 128.
There is no support in the language of the cited cases for this
distinction, and we are given no logical reason why "direct"
interference with a litigant's conduct should provide a special
reason for allowing him to assert third-party rights. Moreover, a
"direct interference" or "interdiction" test does not appear to be
supported by precedent. We have allowed
jus tertii
assertion where the interference was no more direct than it is
here. In
Pierce v. Society of Sisters, 268 U.
S. 510 (1925), for example, private schools were
permitted to assert the rights of parents as against a state
requirement that their children receive a public education, even
though the private schools were not thereby "interdicted" at all,
but only reduced to the role of supplementing the public school
education. Conversely, we regularly disallow
jus tertii
assertion even though the State has "interdicted" the litigant's
conduct to the point of "criminalizing" it.
See Brown v. United
States, 411 U. S. 223,
411 U. S. 230
(1973) (Fourth Amendment rights of others);
Broadrick v.
Oklahoma, 413 U. S. 601,
413 U. S. 610
(1973) (rights of others to be free from application of same
statute);
McGowan v. Maryland, 366 U.
S. 420,
366 U. S.
429-430 (1961) (store owners convicted of violating
Sunday closing laws could not assert religious liberty rights of
customers). Finally, it is not clear why a "direct interference" or
"interdiction" test would not allow the
jus tertii
assertion in this case. For a doctor who cannot afford to work for
nothing, and a woman who cannot afford to pay him, the State's
refusal to fund an abortion is as effective an "interdiction" of it
as would ever be necessary. Furthermore, since the right asserted
in this case is not simply the right to have an abortion, but the
right to have abortions nondiscriminatorily funded, the denial of
such funding is as complete an "interdiction" of the exercise of
the right as could ever exist.
MR. JUSTICE POWELL also voices the concern that our decision
today will be "difficult to cabin," and threatens to allow
"any provider of services . . . to assert his client's or
customer's constitutional rights, if any, in an attack on a welfare
statute that excludes from coverage his particular
transaction."
Post at
428 U. S. 129,
428 U. S.
129-130. It is true that it is more difficult to predict
the pattern of results in future cases when the Court elects to
proceed, as it does today, by assessing relevant factors in
individual cases (and we give no decisive or preeminent importance
to any one of these factors), rather than by adopting a set of
per se rules, such as those MR. JUSTICE POWELL would
apparently prefer based on the "direct interdiction" of the
litigant's conduct and the impossibility of third-party assertion.
Still, we cannot share the Justice's alarm. Unless the "provider of
services" that he has in mind enjoys with his "client" a
confidential relationship such as that of the doctor and patient,
unless the "client's" claim is imminently moot, as the pregnant
woman's technically is, the standing issue in such a future case
will not be definitively controlled by this one. Beyond that, we
simply decline to speculate on cases not before us.
[
Footnote 8]
These examples are not intended to be exclusive.
MR. JUSTICE STEVENS, concurring in part.
In this case, (1) the plaintiff physicians have a financial
stake in the outcome of the litigation, and (2) they claim that the
statute impairs their own constitutional rights. They therefore
clearly have standing to bring this action.
Because these two facts are present, I agree that the analysis
in Part II-B of MR. JUSTICE BLACKMUN's opinion provides an adequate
basis for considering the arguments
Page 428 U. S. 122
based on the effect of the statute on the constitutional rights
of their patients. Because I am not sure whether the analysis in
Part II-B would, or should, sustain the doctors' standing, apart
from those two facts, I join only Parts I, II-A, and III of the
Court's opinion.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART and MR. JUSTICE REHNQUIST join, concurring in part and
dissenting in part.
The Court holds that the respondents have standing to bring this
suit and to assert their own constitutional rights, if any, in an
attack on Mo.Rev.Stat. § 208.152(12) (Supp. 1975). The Court also
holds that the Court of Appeals erred in proceeding to the merits
of respondents' challenge. I agree with both of these holdings, and
therefore concur in Parts I, II-A, and III of JUSTICE BLACKMUN's
opinion, as well as in the first four sentences of Part II-B.
The Court further holds that, after remand to the District
Court, the respondents may assert, in addition to their own rights,
the constitutional rights of their patients who would be eligible
for Medicaid assistance in obtaining elective abortions but for the
exclusion of such abortions in § 208.152(12). I dissent from this
holding.
I
As the Court notes,
ante at
428 U. S.
109-110, respondents, by complaint and affidavit,
established their Art. III standing to invoke the judicial power of
the District Court. They have performed abortions for which
Missouri's Medicaid system would compensate them directly [
Footnote 2/1] if the challenged statutory
section did not preclude it. Respondents
Page 428 U. S. 123
allege an intention to continue to perform such abortions, and
that the statute deprives them of compensation. These arguments, if
proved,would give respondents a personal stake in the controversy
over the statute's constitutionality.
See Warth v. Seldin,
422 U. S. 490,
422 U. S.
498-499 (1975);
cf. id. at
422 U. S.
502-508;
Simon v. Eastern Ky. Welfare Rights
Org., 426 U. S. 26,
426 U. S. 446
(1976).
II
We noted in Warth, and the Court is careful to reiterate today,
ante at
428 U. S. 112,
that the Art. III standing inquiry often is only the first of two
inquiries necessary to determine whether a federal court should
entertain a claim at the instance of a particular party. The Art.
III question is one of power within our constitutional system, as
courts may decide only actual cases and controversies between the
parties who stand before the court.
See Simon v. Eastern Ky.
Welfare Rights Org., supra at
426 U. S. 41-42.
Beyond this question, however, lies the further and less easily
defined inquiry of whether it is prudent to proceed to decision on
particular issues even at the instance of a party whose Art. III
standing is clear. This inquiry has taken various forms, including
the one presented by this case: whether, in defending against or
anticipatorily attacking state action, a party may argue that it
contravenes someone else's constitutional rights. [
Footnote 2/2]
Page 428 U. S. 124
This second inquiry is a matter of "judicial self-governance."
Warth v. Seldin, supra, at
422 U. S. 509.
The usual -- and wise -- stance of the federal courts when policing
their own exercise of power in this manner is one of cautious
reserve.
See generally Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
346-348 (1936) (Brandeis, J., concurring). This caution
has given rise to the general rule that a party may not defend
against or attack governmental action on the ground that it
infringes the rights of some third party,
ante at
428 U. S. 114,
and to the corollary that any exception must rest on specific
factors outweighing the policies behind the rule itself. [
Footnote 2/3]
See
Barrows v.
Jackson,
Page 428 U. S. 125
346 U. S. 249,
346 U. S. 257
(1953);
cf. generally United States v. Richardson,
418 U. S. 166,
418 U. S.
188-197 (1974) (POWELL, J., concurring).
The plurality acknowledges this general rule, but identifies
"two factual elements" -- thought to be derived from prior cases --
that justify the adjudication of the asserted third-party rights:
(i) obstacles to the assertion by the third party of her own
rights, and (ii) the existence of some "relationship" such as the
one between physician and patient. In my view, these factors do not
justify allowing these physicians to assert their patients'
rights.
A
Our prior decisions are enlightening. In
Barrows v. Jackson,
supra, a covenantor who breached a racially restrictive
covenant by selling to Negroes was permitted to set up the buyers'
rights to equal protection in defense against a damages action by
the covenantees.
See Shelley v. Kraemer, 334 U. S.
1 (1948). The Court considered the general rule
outweighed by "the need to protect [these] fundamental rights" in a
situation "in which it would be difficult if not impossible for the
person whose rights are asserted to present their grievance before
any court." 346 U.S. at
346 U. S. 257.
It would indeed have been difficult, if not impossible, for the
rightholders to assert their own rights: the operation of the
restrictive covenant and the threat of damages actions for its
breach tended to insure they would not come into possession of the
land, and there was at the time little chance of a successful suit
based on a covenantor's failure to sell to them. In a second case,
NAACP v. Alabama, 357 U. S. 449
(1958), an organization was allowed to resist an order to produce
its membership list by asserting the associational rights
Page 428 U. S. 126
of its members to anonymity because, as the plurality notes,
ante at
428 U. S. 116,
the members themselves would have had to forgo the rights in order
to assert them. And in
Eisenstadt v. Baird, 405 U.
S. 438 (1972), the Court considered it necessary to
relax the rule and permit a distributor of contraceptives to assert
the constitutional rights of the recipients because the statutory
scheme operating to deny the contraceptives to the recipients
appeared to offer them no means of challenge.
Id. at
405 U. S.
446.
The plurality purports to derive from these cases the principle
that a party may assert another's rights if there is "some genuine
obstacle" to the third party's own litigation.
Ante at
428 U. S. 116.
But this understates the teaching of those cases: on their facts,
they indicate that such an assertion is proper not when there is
merely some "obstacle" to the rightholder's own litigation, but
when such litigation is, in all practicable terms, impossible.
Thus, in its framing of this principle, the plurality has gone far
beyond our major precedents.
Moreover, on the plurality's own statement of this principle and
on its own discussion of the facts, the litigation of third-party
rights cannot be justified in this case. The plurality virtually
concedes, as it must, that the two alleged "obstacles" to the
women's assertion of their rights are chimerical. Our docket
regularly contains cases in which women, using pseudonyms,
challenge statutes that allegedly infringe their right to exercise
the abortion decision. Nor is there basis for the "obstacle" of
incipient mootness when the plurality itself quotes from the
portion of
Roe v. Wade, 410 U. S. 113,
410 U. S.
124-125 (1973), that shows no such obstacle exists. In
short, in light of experience which we share regularly in reviewing
appeals and petitions for certiorari, the "obstacles" identified by
the plurality as justifying departure from the general rule
Page 428 U. S. 127
simply are not significant. Rather than being a logical
descendant of
Barrows, NAACP, and
Eisenstadt,
this case is much closer to
Warth v. Seldin, supra, in
which taxpayers were refused leave to assert the constitutional
rights of low-income persons in part because there was no obstacle
to those low-income persons' asserting their own rights in a proper
case. [
Footnote 2/4]
See
422 U.S. at
422 U. S.
509-510;
cf. McGowan v. Maryland, 366 U.
S. 420,
366 U. S. 430
(1961).
B
The plurality places primary reliance on a second element, the
existence of a "confidential relationship" between the rightholder
and the party seeking to assert her rights. [
Footnote 2/5] Focusing on the professional
relationships
Page 428 U. S. 128
present in
Griswold, Doe and
Planned Parenthood of
Missouri v. Danforth, ante p.
428 U. S. 52, the
plurality suggests that allowing the physicians in this case to
assert their patients' rights flows naturally from those three.
Indeed, its conclusion is couched in terms of the general
appropriateness of allowing physicians to assert the privacy
interests of their patients in attacks on "governmental
interference with the abortion decision."
Ante at
428 U. S. 115,
428 U. S.
118.
With all respect, I do not read these cases as merging the
physician and his patient for constitutional purposes. The
principle they support turns not upon the confidential nature of a
physician-patient relationship, but upon the nature of the State's
impact upon that relationship. In each instance, the State directly
interdicted the normal functioning of the physician-patient
relationship by criminalizing certain procedures. In the
circumstances of direct interference, I agree that one party to the
relationship should be permitted to assert the constitutional
rights of the other, for a judicial rule of self-restraint should
not preclude an attack on a State's proscription of
constitutionally protected activity.
See also Meyer v.
Nebraska, 262 U. S. 390
(1923). But Missouri has not directly interfered with the abortion
decision -- neither the physicians nor their patients are forbidden
to engage
Page 428 U. S. 129
in the procedure. [
Footnote 2/6]
The only impact of § 208.152(12) is that, because of the way
Missouri chose to structure its Medicaid payments, it causes these
doctors financial detriment. This affords them Art. III standing
because they aver injury in fact, but it does not justify
abandonment of the salutary rule against assertion of third-party
rights.
C
The physicians have offered no special reason for allowing them
to assert their patients' rights in an attack on this welfare
statute, and I can think of none. Moreover, there are persuasive
reasons not to permit them to do so. It seems wholly inappropriate,
as a matter of judicial self-governance, for a court to reach
unnecessarily to decide a difficult constitutional issue in a case
in which nothing more is at stake than remuneration for
professional services. And second, this case may well set a
precedent that will prove difficult to cabin. No reason immediately
comes to mind, after today's holding, why any provider of services
should be denied standing to assert his client's or customer's
constitutional rights,
Page 428 U. S. 130
if any, in an attack on a welfare statute that excludes from
coverage his particular transaction. [
Footnote 2/7]
Putting it differently, the Court's holding invites litigation
by those who perhaps have the least legitimate ground for seeking
to assert the rights of third parties.
Page 428 U. S. 131
Before today, I certainly would not have thought that an
interest in being compensated for professional services, without
more, would be deemed a sufficiently compelling reason to justify
departing from a rule of restraint that well serves society and our
judicial system. The Court quite recently stated, with respect to
the rule against assertion of third-party rights as well as certain
other doctrines of judicial self-restraint, that
"[t]hese principles rest on more than the fussiness of judges.
They reflect the conviction that, under our constitutional system,
courts are not roving commissions assigned to pass judgment on the
validity of the Nation's laws. . . . Constitutional judgments . . .
are justified only out of the necessity of adjudicating rights in
particular cases between the litigants brought before the
Court."
Broadrick v. Oklahoma, 413 U.S. at
413 U. S.
610-611 (citation omitted). Today's holding threatens to
make just such "roving commissions" of the federal courts.
[
Footnote 2/1]
As the Court notes,
ante at
428 U. S.
109-110, Missouri has structured its Medicaid system so
that payments for medical services are made directly to the
physician, rather than to the patient.
[
Footnote 2/2]
The inquiry also has been framed, in appropriate cases, as
whether a person with Art. III standing is asserting an interest
arguably within the zone of interests intended to be protected by
the constitutional or statutory provision on which he relies,
see, e.g., Data Processing Service v. Camp, 397 U.
S. 150,
397 U. S.
153-156 (1970), or whether a person should be allowed to
attack a statute not on the ground that it is unconstitutional as
applied to him, but that it would be unconstitutional as applied to
third parties,
see, e.g., United States v. Raines,
362 U. S. 17
(1960);
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
486-488 (1965);
Broadrick v. Oklahoma,
413 U. S. 601,
413 U. S.
611-618 (1973).
Cf. generally United States v.
Richardson, 418 U. S. 166,
418 U. S. 196
n. 18 (1974) (POWELL, J., concurring).
[
Footnote 2/3]
I agree with the plurality,
ante at
428 U. S.
113-114, that a fundamental policy behind the general
rule is a salutary desire to avoid unnecessary constitutional
adjudication.
See Ashwander v. TVA, 297 U.S. at
297 U. S.
346-348 (Brandeis, J., concurring). The plurality
perceives a second basis for the rule in the courts' need for
effective advocacy. While this concern is relevant, it should
receive no more emphasis in this context than in the context of
Art. III standing requirements. There, the need for effective
advocacy or a factual sharpening of issues long was the touchstone
of discussion.
See Baker v. Carr, 369 U.
S. 186,
369 U. S. 204
(1962);
Flast v. Cohen, 392 U. S. 83,
392 U. S. 99
(1968). Perhaps a more accurate formulation of the Art. III
limitation -- one consistent with the concerns underlying the
constitutional provision -- is that the plaintiff's stake in a
controversy must insure that exercise of the court's remedial
powers is both necessary and sufficient to give him relief.
See
Warth v. Seldin, 422 U. S. 490,
422 U. S.
498-499,
422 U. S. 508
(1975);
Simon v. Eastern Ky. Welfare Rights Org.,
426 U. S. 26,
426 U. S. 38,
and n. 16 (1976). The Court today uses this formulation.
Ante at
428 U. S.
112-113. A similar focus upon the proper judicial role,
rather than quality of advocacy, is preferable in the area of
prudential limitations upon judicial power.
See Warth v.
Seldin, supra at
422 U. S. 498;
cf. Schlesinger v. Reservists to Stop the War,
418 U. S. 208,
418 U. S.
225-226 (1974).
Congress, by statute, may foreclose any inquiry into competing
policy considerations and give a party with Art. III standing the
right to assert the interests of third parties or even the public
interest.
See Warth v. Seldin, supra at
422 U. S.
500-501.
[
Footnote 2/4]
The plurality retrospectively analyzes the facts in
Barrows,
NAACP, and
Eisenstadt in an effort to show that
litigation by the rightholders was possible in each case.
Ante at
428 U. S. 116
n. 6. While this technically may be true, it also is true that the
Court in
Barrows and
NAACP expressly emphasized
the extreme difficulty of such litigation. Moreover, the plurality
underestimates the difficulty confronting a would-be Negro vendee
in
Barrows who attempted to prove that race alone blocked
his deal with a covenantor. And the plurality denigrates the
difficulty of the NAACP members' assertion of their own right to
anonymity when, in the text on the same page, it quotes,
approvingly\ the very language in the
NAACP case
expressing the difficulty of such litigation. As for
Eisenstadt, allowing the assertion of third-party rights
there was justified not only because of the difficulty of
rightholders' litigation, but also because the State directly
interdicted a course of conduct that allegedly enjoyed
constitutional protection. As explained
infra, Part II-B,
the Court rightly shows special solicitude in that situation.
In any event, as argued above in the text, my basic disagreement
with the plurality rests on the facts of this case, and the
application of the plurality's own test -- "some genuine obstacle"
to the rightholder's assertion of her own rights. There simply is
no such obstacle here.
[
Footnote 2/5]
The plurality's primary emphasis upon this relationship is in
marked contrast to the Court's previous position that the
relationship between litigant and rightholder was subordinate in
importance to "the impact of the litigation on the third-party
interests."
Eisenstadt v. Baird, 405 U.
S. 438,
405 U. S. 445
(1972). I suspect the plurality's inversion of the previous order
results from the weakness of the argument that this litigation is
necessary to protect third-party interests. I would keep the
emphasis where it has been before, and would consider the closeness
of any "relationship" only as a factor imparting confidence that
third-party interests will be represented adequately in a case in
which allowing their assertion is justified on other grounds.
Cf. 428
U.S. 106fn2/2|>n. 2,
supra.
[
Footnote 2/6]
The plurality contends that assertion of third-party rights has
been allowed where "the interference was no more direct than it is
here,"
ante at
428 U. S. 118
n. 7, and cites
Pierce v. Society of Sisters, 268 U.
S. 510 (1925).
Pierce is of little or no
precedential value, since the Court did not address -- or even
mention -- the issue of third-party rights in that case. More
importantly, however, the interference with the normal functioning
of the private school-parent relationship was as complete as if it
had been proscribed: as the statute required that children be sent
"
to a public school for the period of time a public school
shall be held during the current year,'" id. at
268 U. S. 530,
there was no practical way for parents to send their children to
private schools. As the Court noted,
"[t]he inevitable practical result of enforcing the Act . . .
would be destruction of appellees' primary schools, and perhaps all
other private primary schools for normal children within the State
of Oregon."
Id. at
268 U. S.
534.
[
Footnote 2/7]
The plurality says it is proceeding "by assessing relevant
factors in individual cases . . . , rather than by adopting a set
of
per se rules," and implies that I am advocating the
latter course.
Ante at
428 U. S. 119
n. 7. The fact is that I have not proposed any such set of rules.
Rather, my dissent is grounded in the decisions of the Court from
which I believe today's holding departs.
By divining from previous cases two factors, and two factors
alone, whose application to the facts of this case "quickly yields
its proper result,"
ante at
428 U. S. 117,
the plurality appears to have articulated a new rule of third-party
standing that leaves little room for flexibility. The ease with
which the plurality would allow assertion of such standing in this
case -- based on nothing more substantial than a professional (or
perhaps only an abortion clinic) relationship and dimly perceived
"obstacles" to the rightholder's own litigation -- suggests that
"the proper result" usually will be third-party standing.
The plurality's attempt to distinguish this case from the next
one involving another provider of services is not reassuring. Three
distinguishing factors are suggested. The first one, a
"confidential" relationship, is analytically empty (especially when
one recognizes that, realistically the "confidential" relationship
in a case of this kind often is set in an assembly-line type
abortion clinic). Moreover, it is unsupported by nearly half of the
cases the plurality relies upon in finding "relationship" one of
the two elements yielding third-party standing: there was no
"confidential" relationship in
Barrows or
Eisenstadt -- or, so far as the opinion shows, with
respect to one of the defendants in
Griswold. The second
suggested distinction is that the woman's right in this case "is
one that may be impaired by its assertion." I do not understand how
a woman's litigation over her right to make an abortion decision
impairs her ability to make that decision. Finally, the plurality
falls back on the contention that the woman's claim here is
"imminently moot," a point which the plurality's own citation to
Roe proves to be irrelevant. As these three "distinctions"
seem insubstantial, I repeat: today's holding will be difficult to
cabin.