U.S. Supreme Court
SINGLETON v. WULFF, 428 U.S. 106 (1976)
428 U.S. 106
SINGLETON, CHIEF, BUREAU OF MEDICAL SERVICES, DEPARTMENT OF
WELFARE OF MISSOURI v. WULFF ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Argued March 23, 1976
Decided July 1, 1976
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. 112-121; 121-122; 122.
508 F.2d 1211, reversed and remanded.
MR. JUSTICE 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 [428 U.S. 106, 107]
payment for the abortions and the State will be out of pocket by the amount
of the payments. Pp. 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. 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, 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. 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. 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. 122.
Michael L. Boicourt, Assistant Attorney General of Missouri, argued the cause
for petitioner. With him on the brief was John C. Danforth, Attorney General.
Frank Susman argued the cause and filed a brief for respondents. [428 U.S. 106, 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,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.
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 [428 U.S. 106, 109] abortions unless such abortions are
This provision is the subject of the litigation before us.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, 36.3
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,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
[428 U.S. 106, 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 24-25.
The plaintiffs having responded to this motion with a memorandum and also
with the affidavits described [428 U.S. 106, 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, 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
[428 U.S. 106, 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).
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 152-153; Flast v. Cohen, 392
U.S. 83, 99 n. 20 (1968); Barrows v. Jackson, 346 U.S. 249, 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 [428 U.S. 106,
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,
37-39 (1976); Investment Co. Institute v. Camp, 401 U.S. 617, 620-621 (1971);
Data Processing Service v. Camp, 397 U.S., at 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 [428 U.S. 106, 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, 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, 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,
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 255. See also Flast v. Cohen, 392 U.S., at 99 n. 20; McGowan v.
Maryland, 366 U.S. 420, 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 [428 U.S. 106, 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 481. See also Eisenstadt v. Baird, 405 U.S. 438, 445-446 (1972)
(stressing "advocate" relationship and "impact of the litigation on the
third-party interests"); Barrows v. Jackson, 346 U.S., at 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.5 410 U.S., at 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 [428 U.S. 106, 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 its 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 459. See also Eisenstadt v. Baird, 405 U.S., at 446; Barrows
v. Jackson, 346 U.S., at 259.6 [428 U.S. 106, 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 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 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 [428 U.S. 106, 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.7
In this respect, the judgment of the Court of Appeals is affirmed.
[428 U.S. 106, 119]
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 [428
U.S. 106, 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,
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. [428 U.S. 106,
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 557.8 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. 52, Bellotti v. Baird, post, p. 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 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 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 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, 230 (1973) (Fourth Amendment rights of others); Broadrick
v. Oklahoma, 413 U.S. 601, 610 (1973) (rights of others to be free from
application of same statute); McGowan v. Maryland, 366 U.S. 420, 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 [428 U.S. 106, 119] 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 129, 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
pre-eminent 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
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 [428 U.S. 106, 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
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.
As the Court notes, ante, at 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 directly1
if the challenged statutory section did not preclude it. Respondents [428 U.S. 106, 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, 498-499 (1975); cf. id., at 502-508; Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 40-46 (1976).
We noted in Warth, and the Court is careful to reiterate
today, ante, at 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 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.2 [428 U.S.
This second inquiry is a matter of "judicial self-governance." Warth v.
Seldin, supra, at 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, 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 114, and to the corollary that any
exception must rest on specific factors outweighing the policies behind the rule
itself.3 See Barrows v. Jackson,
[428 U.S. 106, 125] 346 U.S. 249, 257 (1953); cf. generally United
States v. Richardson, 418 U.S. 166, 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'
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 persons whose rights are asserted to present
their grievance before any court." 346 U.S., at 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 [428
U.S. 106, 126]
of its members to anonymity because, as the plurality notes, ante, at 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 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 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, 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 [428 U.S. 106, 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.4 See 422 U.S., at 509-510; cf. McGowan v. Maryland, 366 U.S.
420, 430 (1961).
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.5
Focusing on the professional relationships [428
U.S. 106, 128] present in Griswold, Doe and Planned Parenthood of
Missouri v. Danforth, ante, p. 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 115, 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
[428 U.S. 106, 129] in the procedure.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
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,
[428 U.S. 106, 130] if any, in an attack on a welfare statute that
excludes from coverage his particular transaction.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. [428 U.S. 106, 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 610-611 (citation omitted). Today's holding threatens to make just such
"roving commissions" of the federal courts.
[Footnote 1] As the Court notes, ante,
at 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] 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, 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, 486-488 (1965); Broadrick v.
Oklahoma, [428 U.S. 106, 124] 413 U.S.
601, 611-618 (1973). Cf. generally United States v. Richardson, 418 U.S. 166,
196 n. 18 (1974) (POWELL, J., concurring).
[Footnote 3] I agree with the plurality,
ante, at 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 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, 204 (1962); Flast v. Cohen, 392
U.S. 83, 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, 498-499, 508 (1975); Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, and n. 16 (1976). The Court
today uses this formulation. Ante, at 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 498;
cf. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 225-226 (1974).
Congress by statute may foreclose any inquiry into competing policy
considerations and give a party with Art. III standing the
[428 U.S. 106, 125]
right to assert the interests of third parties or even the public interest. See
Warth v. Seldin, supra, at 500-501.
[Footnote 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 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 5] The plurality's primary
emphasis upon this relationship is in [428 U.S.
106, 128] 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, 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. n. 2, supra.
[Footnote 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 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 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 534.
[Footnote 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 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 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. [428 U.S. 106, 132]
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