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July 1, 1976



Author: Blackmun

[ 428 U.S. Page 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,*fn1 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

[ 428 U.S. Page 109]

     include abortions unless such abortions are medically indicated."

This provision is the subject of the litigation before us.*fn2

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.*fn3 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,*fn4 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. Page 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, "[deprives] plaintiffs of their right to practice medicine according to the highest standards of medical practice"; "[deprives] plaintiffs' patients of the fundamental right of a woman to determine for herself whether to bear children"; "[infringes] upon plaintiffs' right to render and their patients' right to receive safe and adequate medical advice and treatment"; and "[deprives] 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. Page 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. Page 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. Page 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. Page 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 "[assuring] 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. Page 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 [reposed] 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.*fn5 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. Page 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 "[to] 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.*fn6

[ 428 U.S. Page 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. Page 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.*fn7 In this respect, the judgment of the Court of Appeals is affirmed.

[ 428 U.S. Page 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. Page 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. Page 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 557.*fn8 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.

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

[ 428 U.S. Page 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.


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 directly*fn1 if the challenged statutory section did not preclude it.

[ 428 U.S. Page 123]

     Respondents 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.*fn2

[ 428 U.S. Page 124]

     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.*fn3 See Barrows v.

[ 428 U.S. Page 125]

     Jackson, 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' rights.


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. Page 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. Page 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.*fn4 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.*fn5 Focusing on the professional relationships

[ 428 U.S. Page 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. Page 129]

     in the procedure.*fn6 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.


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. Page 130]

     if any, in an attack on a welfare statute that excludes from coverage his particular transaction.*fn7

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. Page 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 "[these] 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.

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