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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 ...

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