*1 BUREAU OF SINGLETON, CHIEF, MEDICAL HEALTH DEPARTMENT OF AND SERVICES, OF WELFARE MISSOURI v. WULFF et al. July Argued No. 74 — 1393. March 1976 Decided *2 Boicaurt, Michael L. Attorney Assistant General of argued Missouri, petitioner. cause for him With the brief John Danforth, Attorney G. General.
Frank Busman cause brief argued the and filed a respondents. of the opinion delivered the Blackmun
Mr. Justice opinion an III) together with (Parts I, II-A, (Part II-B), which Mr. Brennan, Justice Mr. Jus- joined. and Mr. Justice tice Marshall White, (cid:127) claim of Like its this case involves a companions,1 decision State’s with the unconstitutional interference particular object pregnancy. terminate challenge a Missouri abortions excluding statute “medically purposes are not from the indicated” needy persons. which Medicaid benefits are available to present In its presents the case two however, posture, going issues not of this first dispute. the merits the plaintiff-appellees, physicians per- whether who *3 nonmedically form indicated to have abortions, to which we answer that suit, maintain do. Court of whether the exercising second Appeals, jurisdiction because the suit had been dismissed in the District Court for lack of properly proceeded standing, to a determination of which we answer merits, that it did not.
I participates Missouri in the pro- so-called Medicaid under which gram, the Federal partially Government plans underwrites qualifying state for medical assistance needy. U. S. C. 1396 et seq. See (1970 § ed. IV). and Supp. plan, Missouri’s which is out in Mo. set §§ Rev. Stat. (Supp. 208.151-208.158 in 1975), includes, 208.152, § a list categories of medical services that eligible are for funding. Medicaid is: last
“(12) Family planning services by as defined rules federal and regulations; provided, however, such that family planning services not in- shall 1 Planned Parenthood ante, p. Missouri Danforth, 52, Baird, post, p. Bellotti 132.
o CO. medically are such abortions abortions unless elude indicated.” before us.2 subject litigation is the provision
This District Court The suit filed in the United States n for Missouri- the Eastern District Missouri two physicians. plaintiff Each an licensed affidavit avers, to motion that he “has opposition to dismiss, filed anticipates providing abortions welfare provided, patients payments.” who eligible Medicaid App. plaintiffs allege 36.3 The further in their affidavits 32, applications all Medicaid filed connection with performed by abortions them been refused responsible official,4 who is the state defendant, reli- ance on the challenged (12). App. 208.152 It § 36. entirely applications. not clear who has filed these patients One affiant states that “he and have been [his] refused,” id., 32; other refers “those who have applications submitted such payments on his behalf” Id., and states such “payments'have been refused.” at 36. entirely clear to whom pay- Indeed, ments would ifgo they were made. We how- assume, 'from .the statute’s several ever, payments references “on eligible behalf of” §§208.151 see and 208.- persons, provider of the services himself seeks
2The complaint contained two additional counts against directed the Missouri State Registration Arts, Board of Healing for the concerning other relating and Missouri statutes upon to abortions minors. District Court’s dismissal of those counts has not been appealed and is now before us. 3Plaintiffs sued on their own behalf and on of behalf the of class similarly physicians. App. situated Apparently, however, 15. the suit was dismissed the any District before such class was certified. Singleton, petitioner herein, Defendant Chief the Bureau of Medical Services the Division of Welfare of Missouri’s De partment of Public Health and Id., Welfare. at 16. each event, In from the State.
reimbursement anticipates further refusals that he plaintiff states nonmedically indicated abortions. to fund defendant from that such “deter Each avers refusals [him] to be he considers practice medicine in the manner most . expertise patients and beneficial for said . . [sic] func- ordinary customary and chill and thwart and tioning relationship.” 36. doctor-patient App.
The complaint sought a declaration statute's invalidity injunction and an against enforcement. A number of grounds among them were that stated, statute, unconstitutionally “on its face applied,” and as “[d]eprives plaintiffs of right practice their vague, medicine according to highest standards of medical “[d]eprives practice”; plaintiffs’ patients of funda- mental of a woman to determine herself whether to bear children”; “[infringes upon plaintiffs’ right patients’ render and their right to receive safe and ade- quate medical advice and treatment”; “[d]eprives plaintiffs patients, each in their own classifica- equal protection tion, of the laws.” Id., 12-13.
The defendant’s sole pleading District Court was pre-answer motion to dismiss. sought Dismissal was upon several alternative grounds: that there was no case or controversy; plaintiffs lacked “standing to litigate the constitutional issues raised”; that injunctive relief granted” “cannot be because of absence “irrep- arable harm” to the plaintiffs; plaintiffs “per- sonally could suffer no harm”; and in any case “cannot litigate the alleged deprivation or infringement of the civil rights of their patients.” welfare Id., at 2<D25. plaintiffs having responded to this motion with a
memorandum and also with the affidavits described
111 three-judge above, panel had been convened to hear count the case dismissed the now before us “for standing.” lack of “logical The court saw no nexus be- tween the asserted plaintiffs status and the claim they adjudicated.” seek to Bd. v. State Wulff Registration Arts, 1144 Healing 380 Supp. 1137, F. (1974).
The United States Appeals Eighth Court of for the Circuit 1211 It (1974). reversed. 508 F. 2d reasoned Wade, that Roe Doe v. 410 113 v. (1973), U. S. and Bolton, 410 U. interpreted S. 179 several “ way its own had decisions, ‘paved earlier physicians assert prac to rights constitutional ” tice citing Nyberg City Virginia, 495 F. medicine/ 2d (CA8), appeal denied, dismissed and cert. (1974). to include Those were said “ ” perform ‘the advise and and abortions/ “ ‘inextricably furthermore be with up bound ” privacy women who seek 508 F. abortions.’ 2d, at Clearly, 1213. the restriction of Medicaid benefits affected “both plaintiff physicians professionally and Id., monetarily.” Court 1214. in the result, of Appeals’ view, alleged was that had sufficient “ ” “ ‘injury fact,’ interest ‘arguably also an within ; protected the zone of interests to be .. consti . . the . ” ibid., guarantee question,’ tutional Data quoting Processing (1970). Camp, Service S. 150, found
Although it the matter “not without its diffi- F. culty,” 2d, Appeals next con- being appellants” cluded that, “urged by (respondents proceed it should from the here), standing question This, the merits of the case. rather than a remand, question proper considered because the statute’s validity profit could not from further refinement, one indeed was whose answer was no doubt. The *6 112 “obviously
statute it was and therefore unconstitutional,” appeared might “that the case well have been decided Id., judge.” one federal The 1215. ac- court, chose “to final cordingly, make determination of this case.” Ibid. Proceeding court found merits, a “clear violation of the Clause.” Equal Protection Ibid. “special regulation statute constituted a on abor- tion,” and discriminated both against patient and the physician “by patient’s poverty.” Id., reason of the 1215-1216. Section (12) 208.152 therefore declared Injunctive unconstitutional of Appeals. re- lief was felt to be it unnecessary, assumed being the State comply would with the declaration and cease needy discrimination patients seeking between thera- peutic and nontherapeutic abortions. 2d, 508 F. at 1213- granted 1216. We certiorari, limited to the ques- two tions identified the opening paragraph this opinion. 1041 (1975). S.
II Although we are they not certain that have been clearly separated the District Court’s and Court of Ap- peals’ opinions, two distinct questions pre- sented. have distinguished We them in prior cases, g., e. Processing Data Service Camp, S., at 152-153; U. Cohen, Flast n. 20 (1968); S. Barrows v. Jackson, 346 U. they and are these: First, whether the plaintiff-respondents allege “injury in fact,” is, a sufficiently concrete interest the out- come of suit to make a case controversy sub- ject to Ill a federal court’s Art. jurisdiction, and, second, prudential whether, matter, plaintiff-respondents are proper proponents particular legal rights on they which base their suit.
A. first of questions these needs little comment, for no doubt the respondent-physicians there is now that injury operation from the of the chal- suffer concrete Their described lenged complaint affidavits, statute. they will continue above, allege performed they be reim- perform operations which would under the Medicaid it not for the program, bursed were limitation of abortions to those that are reimbursable If in their “medically physicians prevail indicated.” they benefit, suit to remove this will limitation, *7 payment will then receive for the abortions. The State (and by out the Government) pocket Federal will'be of of payments. relationship amount The between classically clearly exists parties adverse, and there be- controversy or tween them a case the constitutional Rights Ky. Org., sense. Simon v. Eastern 426 Welfare Institute v. (1976); 37-39 Investment Co. 26, U. S. Processing Data Camp, (1971); U. 620-621 617, S. Service S., at 151-156. U. Camp, may
B. the doctors assert question rights of what controversy to is more difficult. seeking resolve that to Appeals perceived The Court of adverted to what it practice be the own to rights doctor’s “constitutional no medicine.” 508 F. at 1213. We have occa- 2d, rights Assuming sion to decide whether such exist. It they ap- of can assert them. do, doctors, course, Appeals of also accorded pears, however, granted the doctors and indeed them standing assert, of partly rights patients. relief based upon, jus We must of tertii decide whether this assertion was a proper one. courts must hesitate contro- resolving
Federal before power even one within their versy, constitutional on the basis of the resolve, rights persons of third parties litigation. reasons two. First, adjudicate the courts should not such rights unneces- may and it be fact the of sarily, holders those or be able will to assert do not wish either rights them, litigant whether in-court enjoy regardless them TV 297 U. A, Ashwander v. S. is successful not. See (offer concurring) J., (1936) (Brandéis, 345-348 288, which requirement one means ing adjudications). avoid unnecessary constitutional courts parties usually themselves be best Second, third will proponents rights. depend their own The courts prefer effective should con therefore advocacy, strue most legal rights when the effective advocates those are before them. The holders of the have a like to the extent will preference, bound be the courts’ decisions under the doctrine stare decisis. e. Baker g., Carr, S. See, 204 (1962) (standing requirement aimed at “assuring] that concrete which sharpens adverseness presenta tion upon which the court largely issues so Holden depends”); v. Hardy, 169 U. (1898) (assertion of parties’ third rights would come with *8 “greater cogency” from parties the third themselves). These two considerations underlie the general Court’s rule: may one “Ordinarily, not claim in this standing Court to the vindicate constitutional rights some third party.” Barrows v. Jackson, 346 U. at 255. See also S., Flast Cohen, 392 v. U. 99 20; n. S., McGowan v. Maryland, 366 U. S. 429 (1961). any general
Like rule, this one should not be however, applied where underlying justifications are absent. With this in the Court has mind, looked to primarily two factual elements to determine whether the rule should apply in particular case. The first is the relationship of the litigant person the whose right he seeks to assert. If the enjoyment of the right inextricably up bound with the activity the litigant wishes to pursue, the court at least can be sure that its construction of right’s the unnecessary the is not the that right sense will outcome of suit. enjoyment be unaffected the the and relationship litigant between Furthermore, or party fully, the third be such that the former very as of the proponent right effective a nearly, Thus latter. in Griswold Connecticut, U. S. persons where two had been of giving convicted advice permitted Court the defend contraception, one whom was a licensed assert ants, physician, privacy rights persons they the married whom pointed advised. The Court to the “confidential” nature of the relationship between the defendants and the married and reasoned persons, latter were “likely adversely be diluted or affected” if could not be asserted such a Id., case. at 481. See also Baird, Eisenstadt v. 445-446 S. 438, (1972) (stressing “advocate” relationship “impact of the litigation on the third-party interests”); Barrows Jackson, (owner subject real estate S., to racial covenant granted such challenge part covenant because she was “the one whose charge keeping repose power to continue [d] to use her property to discriminate to discontinue such A use”). doctor-patient relationship similar to that in Griswold existed in Bolton, Doe v. where permitted also physicians to assert the of their patients.5 410 S.,U. at 188-189. Indeed, since the right abortion, to an Doe flatly would con trol the instant case were it not for fact there physicians seeking protection were from possible prosecution. criminal
The other factual element which Court has looked ability is the of the third party to assert his own
5 holding We today have that reiterated in Planned Parenthood of Danforth, ante, Missouri v. at 62. the reasons relationship
right. Even where the close, gen will persons to assert their own requiring obstacle to erally apply. genuine If there is some still from party’s the third absence such assertion, however, tendency suggest court its that his is not loses or truly truly important party to him, stake, fhe by right’s who in court default best becomes Alabama, in proponent. available NAACP v. Thus, U. held that National the Court in People, Association for the of Colored Advancement names of resisting divulge a court that its order could First and Fourteenth assert the Amend members, ments anonymous. those remain members “[tjo require Court reasoned that that right] [the by be claimed result members themselves would in very nullification of the right at the moment of its asser Id., at tion.” 459. also See Eisenstadt v. Baird, 446; Jackson, Barrows v. at 259.6 S., U. S., 6 Mr. objects that such an obstacle is not Justice Powell enough, prior our third-party rights that cases allow assertion of only when such assertion third parties themselves would be practicable impossible.” “in all terms Post, at 126. Care fully analyzed, go our cases do not Negro that far. The real- purchaser estate Barrows, if prove he could that the racial way stood purchase (as alone in the of his presumably covenant he easily done, given could have posture the amicable of the seller case), surely sought that could invalidity declaration injunction against or an its enforcement. The Association members in NAACP v. Alabama have obtained a similar declaration could or injunction, suing anonymously the use of pseudonyms. The re cipients contraceptives (or in Eisenstadt counterparts Doe, matter) Griswold and sought that could have relief similar as necessary to the enjoyment of rights. their constitutional point easy alternatives, they these were but differed degree if difficulty, all, differed at from the al ternative in this case of seeking the women themselves a declaration injunction pay would force the State to the doctors for their abortions.
Application principles present of these case yields of the quickly proper result. The closeness in Griswold and in Doe. relationship patent, as was safely A woman cannot secure an abortion without physician, impecunious aid of a an woman cannot being easily physician’s secure an abortion without by right exercise of her paid State. The woman’s is therefore neces- abortion, dimension, to an whatever its constitutionally pro- sarily Moreover, at stake here. physician decision is one in which the tected abortion Wade, intimately Roe 410 U. S., involved. See herself, therefore, 153-156. Aside from the woman constitu- physician uniquely qualified litigate tionality of the discrimina- with, State’s interference tion against, that decision. there rights,
As of her own to the woman’s assertion may be chilled For one she thing, several obstacles. very protect such desire to from assertion a court suit. publicity decision from the of a privacy her at least mootness, A is the imminent second obstacle claim. woman’s the technical individual sense, maturing of Only most, at the after the months, a few thereto right her undergo abortion, the decision to an irrevocably as it seems lost, assuming, been will have woman can impecunious that unless the assume, fair forgo abortion. eligibility she must establish Medicaid insurmountable. obstacles are not It is true that these frequently so may brought pseudonym, under a Suit be longer pregnant A who is no has been done. woman litigate point be- right may nonetheless retain ” “ review.’ yet evading 'capable repetition it is cause Wade, And it be Roe at 124-125. S., membership al- whose fluid assembled, could be a class claims. But if with live ways included some women to such “representative” be is to the assertion in terms of ef- anyway, an extent there seems little loss advocacy its assertion allowing fective from *11 physician. ap- is reasons, generally
For these we conclude that it rights to the propriate physician to of assert allow a women as patients against governmental interference decision, with and we to restrict our the abortion decline effect in Doe to its holding to criminal con- purely that text.7 In this of the Court of judgment the respect, Appeals is affirmed. Doe, so limit the other cases Justice would Mr. Powell
cited,
“directly
explaining them as
inter
cases
State
which the
“directly
fered
the abortion
the
with
decision”
interdicted
functioning
relationship by
normal
of the
criminal
physician-patient
128,
izing
procedures.” Post,
support
certain
There is no
language
the
for
distinction,
given
cited cases
this
and we are
logical
why
no
litigant’s
reason
“direct” interference with a
conduct
provide
special
a
allowing
should
to
him
assert third-
reason
party rights. Moreover,
“direct
interference”
a
“interdiction”
appear
supported
test
not
by precedent.
does
to be
We
jus tertii
allowed
the
assertion
interference
no more di
where
here,
Society
rect than
In
Sisters,
Pierce v.
III On with agree, however, this we do not record, beyond Appeals proceeding action of the Court issue a resolution of the merits the case. Petitioner urges particularly inap- this action was propriate requested which because the case one in injunctive granted relief could be or denied on the merits only by three-judge court, appeal a district with direct unnecessary find it reach contention, here. We this respondents’ or the court arguments three-judge required was not is so un- patently because statute declaratory constitutional and because in event Quite from apart relief warranted. these considera- tions, Appeals’ resolution of merits *12 necessary. Furthermore, it an “interdiction” of as would ever be right simply right since case the asserted this is not the to have abortion, nondiscriminatorily right an the but to have abortions funded, of funding complete the denial such is as an “interdiction” of exercise as could ever exist. also voices the concern that our decision Justice
MR. Powell today cabin,” “any will be “difficult to and threatens to allow provider of services to assert his ... client's customer’s con- rights, any, if stitutional in an attack a statute on welfare coverage particular Post, 129, excludes from his transaction.” predict pattern 129-130. It is true that it is mofe difficult to results future cases elects proceed, when Court to today, by assessing (and does relevant factors in cases individual we give pre-eminent importance any no decisive or one of these factors), by adopting per rather rules, than a set of se such as those Mr. apparently prefer would Justice Powell based on the “direct litigant’s interdiction” of the impossibility conduct and the third-party Still, assertion. we cannot share the Justice’s alarm. “provider enjoys Unless has services” that he in mind with his “client” a relationship confidential such as that of the doctor and patient, unless the moot, “client’s” claim is imminently as pregnant technically is, woman’s standing issue such a definitively case future will not be Beyond controlled one. this that, simply speculate we decline on cases not before us. appellate unacceptable to us to be an exercise of seems jurisdiction. respect that is complaint’s
As with to the count noted, petitioner filed in District Court us, before standing. lack He pre-answer motion dismiss for pleading no no other to the answer, filed addressed He did App. merits. answer some interrogatories, 26, stipulated but to no no facts, gave intimation what defenses, might if any, plaintiffs’ he have other than the standing. lack of alleged The District Court his granted motion to dismiss no and more. That was the dismissal decision” appealed “final see C. from, § S. appeal and on petitioner entirely himself limited underlay determination that short, peti- it. In tioner has never way been heard in on the merits of the case. general
It is the rule, of course, appellate a federal court does not consider an not passed issue upon below. In Hormel Helvering, explained this is “essential in order that
parties may the opportunity have to offer all evidence they believe relevant . issues . . in order that [and] litigants may surprised not be appeal by final decision there of issues which upon they have had no opportunity to introduce evidence.” We no idea what evidence, *13 if petitioner any, would, or offer in could, defense of this statute, but petitioner this is because has had no opportunity proffer such evidence. Moreover, even assuming that there is no such evidence, petitioner should opportunity have the to present legal whatever argu- may he in ments defense of the statute. We think justified he in presenting arguments those to the of Appeals, and assuming, rather, that he would at least be allowed answer the complaint, should the Court of Appeals reinstate it.
The matter of questions up what be taken resolved first time on appeal primarily is one left to the discretion of the courts of appeals, to be exercised the facts individual cases. no gen We announce eral rule. Certainly there are in which a circumstances federal appellate justified court resolving is an issue not passed on below, proper where the resolution beyond any see Turner doubt, City Memphis, “injustice might where otherwise result.” Hormel v. Helvering, 312 at 557.8 Suf U. S., fice it to say that this is not such case. The re issue solved the Court Appeals passed has never been upon any decision of in being this Court. so, This justice likely was more to be caused than avoided deciding the issue without an petitioner’s having had opportunity to be heard.
Assuming, had therefore, Appeals the Court of jurisdiction proceed to the merits in this hold case, we it should not have done so. To that extent, judgment reversed, and the di- case is with remanded rections that be returned to the District Court so that petitioner may file an answer complaint and the litigation proceed accordingly.
It ordered. so Mr. Justice concurring part. Stevens, In this (1) case finan- plaintiff-physicians have a cial stake in (2) the outcome' litigation, impairs claim that the statute their own constitutional rights. They clearly bring therefore have standing to this action. I
Because these agree two facts present, analysis in opinion Part II-B Mr. Justice Blackmun’s provides an adequate considering arguments basis examples These are not intended to be exclusive. *14 the constitutional on of the statute on the effect
based I not sure whether am Because patients. of their sustain in II-B analysis should, Part would, join I two from those apart facts, standing, doctors’ opinion. III of the Court’s and II-A, Parts I, Justice, The Chief with whom Mr. Justice Powell, Rehnquist and Mr. Justice Justice Stewart, Mr. part. in in and concurring part dissenting join, standing respondents have The Court holds that the own constitutional their this suit and assert bring 208.152 § if in Rev. Stat. an attack Mo. rights, any, holds that the Court 1975). The Court also (12) (Supp. respond- to the merits Appeals proceeding erred holdings I both of these challenge. agree with ents’ III of Justice concur in Parts II-A, therefore I, the first four sentences as well as in Blackmun’s opinion, of Part II-B. to- the after remand further holds that addition respondents assert,
District Court the of their the constitutional their own rights, for Medicaid assistance patients eligible who would be elective abortions but for the exclusion obtaining I such dissent from this (12). §208.152 abortions holding.
I ante, respondents notes, 109-110, As the Court Ill complaint and affidavit established Art. They judicial power to invoke the of the District Court. which Missouri’s Medic- performed abortions for system compensate directly1 aid would them if the challenged statutory preclude section did not it. Re- notes, ante, 109-110, As the Court Missouri has structured its system payments Medicaid so medical services made directly physician patient. than to the rather
123 spondents allege perform an intention to to continue such deprives and that them of abortions, the statute compensation. These would give if arguments, proved, respondents personal controversy a stake in over the constitutionality. statute's See Warth v. Seldin, U. S. (1975); 502-508; 498-499 Simon v. id., at 490, cf. Eastern Ky. Rights 40-46 Org., 26, 426 U. S. Welfare (1976).
II Warth, We noted in and the careful to reiter- Court is ate ante, Ill today, 112, standing inquiry at that the Art. only often is first necessary of two inquiries determine a whether federal court should entertain a claim at the Ill particular party. instance a The Art. question power is one of sys- within our constitutional as courts decide actual cases and contro- tem, parties versies between the who stand before the court. Simon Ky. Rights See v. Eastern Org., supra, Welfare Beyond 41-42. this lies question, however, the further easily inquiry less defined it prudent whether is proceed particular to decision issues even at the in- Ill party stance of a whose Art. standing is clear. This inquiry has taken various forms, including pre- the one sented defending against this case: whether, or anticipatorily attacking party may state action, argue a it someone rights.2 contravenes else's constitutional inquiry appropriate cases, has been framed, also as person whether asserting with Art. Ill is an interest arguably within the zone of to be protected interests intended statutory provision relies, see, constitutional or on which he Processing g., Camp, 150, e. Data Service 397 U. S. 153-156 v. person should be statute, whether a allowed attack a not on ground applied him, as unconstitutional see, but that it applied parties, would be to third unconstitutional g., Raines, (1960); e. United States Dombrowski v. v. S.U. Pfister, (1965); Oklahoma, 486-488 Broadrick v. “judicial self- a matter inquiry This second 509. The Seldin, Warth governance.” supra, when courts of the federal usual —and wise—stance this manner power policing their own exercise Ashwander generally See one cautious reserve. con- A, (1936) TV 297 346-348 U. S. (Brandéis, J., rule given general This caution has rise curring) . or attack party may against govern- that a not defend *16 ground infringes action it mental ante, corollary that party, 114, of some third at and to the any exception specific outweighing must rest on factors policies behind the rule See Barrows Jack- v. itself.3 (1973). 601, generally Cf. United States v. 413 U. S. 611-618 Richardson, (1974) 166, 196 n. 18 418 U. S. (Powell, J., concurring). agree plurality, 113-114,
3 1 ante, with the that a fundamental policy general salutary behind the rule a desire unneces to avoid sary adjudication. A, S., constitutional See Ashwander v. TV 297 U. (Brandeis, J., concurring). plurality perceives at 346-348 The a second basis the rule in advocacy. the courts' need for effective relevant, While this emphasis concern should receive no more this context in the context of standing requirements. .than Ill Art. advocacy There the need effective or a sharpening factual long of issues was the touchstone of discussion. Carr, See Baker v. 186, (1962); 369 Cohen, U. S. 204 Flast v. 83, 392 U. S. (1968). Perhaps a more accurate formulation of the Art. Ill limitation —one consistent with the underlying concerns the constitu provision plaintiff’s tional controversy stake in a must —is powers insure that exercise the court’s necessary remedial is both give and sufficient to him relief. Seldin, See Warth v. S.U. 490, 498-499, (1975); Ky. Simon Rights v. Eastern Welfare Org., 26, 38, (1976). 426 U. S. and n. 16 today The Court uses this Ante, formulation. at 112-113. A similar focus upon proper judicial role, quality rather than advocacy, preferable in the prudential area of upon judicial limitations power. See Warth v. Seldin, supra, 498; Schlesinger cf. Stop v. Reservists War, (1974). 418 U. S. 225-226
Congress by statute foreclose inquiry into competing policy give party considerations and a with Ill Art.
son, generally 346 U. cf. United S. 249, (1953); Richardson, (1974) v. States 418 U. 188-197 S. concurring). (Powell, J., plurality this but acknowledges general rule, thought
identifies “two to be derived factual elements” — prior adjudication from justify cases—that asserted third-party rights: (i) obstacles to the assertion by party the third own rights, (ii) her existence “relationship” phy- some such as' the one between my In patient. sician these do view factors justify allowing physicians patients’ these to assert their rights.
A prior Our decisions In enlightening. Barrows Jackson, racially who breached a supra, covenantor restrictive permitted covenant -selling Negroes was buyers’ up protection set equal hr defense against a damages Shelley action the covenantees. See Kraemer, 1 (1948). Court considered general outweighed by rule protect “the need to [these] *17 rights” fundamental “in a situation which it be would difficult if impossible not persons rights the whose present grievance are asserted to their before court.” 346 U. at 257. It would indeed have been difficult S., impossible if not rightholders the to assert their own rights: operation the of the restrictive covenant and the of damages threat actions for its breach tended to insure they would not into possession come of the land, there was the time little chance a successful suit based on a covenantor’s failure to sell to In them. a sec- NAACP v. ond 357 U. case, Alabama, S. an (1958), organization was to allowed resist an to produce order its membership list the asserting associational rights right to assert the interests parties third public or even the Seldin, supra, interest. See Warth v. at 500-501. anonymity plu-
of its members to as the because, ante, rality the members themselves would notes, rights the in order them. forgo have had to to assert And in Baird, Eisenstadt S. (1972), necessary per- Court considered it to relax rule and contraceptives mit a distributor of assert the constitu- rights recipients statutory tional because the deny contraceptives scheme operating to to the re- cipients appeared offer them no means of challenge. Id., at 446. plurality purports from derive cases these principle party may that a assert another’s
if there is genuine “some party’s obstacle” the third litigation. Ante, own at 116. But this understates the teaching of those cases: On facts they their indicate that such an proper, assertion is there is when merely some rightholder’s “obstacle” to the own liti- but gation, litigation when practicable such is in all terms impossible. in its Thus, framing this principle, plurality beyond has gone major far our precedents.
Moreover, plurality’s prin own statement of this ciple and on its own discussion litigation of the facts, the third-party rights cannot justified be in this case. The plurality virtually as it two al concedes, must, leged “obstacles” to women’s assertion of their are chimerical. Our regularly docket cases in contains which women, using pseudonyms, challenge statutes that allegedly infringe to exercise the abortion decision. Nor is there basis for the incip “obstacle” of ient mootness when plurality itself from quotes portion Wade, of Roe v. 124-25 that shows no such obstacle In light exists. short, *18 experience regularly which share in we reviewing appeals petitions and for certiorari, the “obstacles” identified plurality the justifying departure as from the general rule simply significant. being logical not Rather than a Barrows, NAACP, Eisenstadt, descendant this Seldin, much case is closer to Warth v. in which supra, taxpayers were refused leave to the constitutional assert persons part low-income no because there was obstacle asserting to those low-income persons' own rights in proper cf. 509-510; case.4 See 422 U. atS., McGowan v. Maryland, (1961). U. S.
B plurality places The primary reliance on a second ele ment, relationship” the existence a “confidential rightholder between the and the party seeking assert her rights.5 Focusing professional relationships on the plurality retrospectively analyzes Banows, the facts NAACP, litigation by in an effort show Eisenstadt that rightholders possible Ante, was in each at 116 6. case. n. While technically may true, this be it also true the Court expressly Barrows emphasized difficulty and NAACP the extreme Moreover, litigation. of such plurality underestimates difficulty confronting Negro a would-be vendee in Barrows who attempted prove race alone blocked his deal with a plurality And the denigrates difficulty covenantor. of the NAA.CP anonymity members’ assertion of their own very when in text page quotes, on the same approvingly, the language expressing difficulty litiga in the NAACP case of such Eisenstadt, As allowing third-party rights tion. the assertion of justified there difficulty rightholders’ because of the litigation, but directly also because the State interdicted a course enjoyed allegedly conduct protection. constitutional As explained infra, II-B, rightly special Part shows solicitude in that situation. any event, argued
In text, my disagreement above basic plurality with case, rests on application of this facts and the plurality’s genuine own right- test —“some obstacle” to the rights. holder’s assertion of her own There simply is no such obstacle here. plurality’s primary emphasis upon this relationship is in *19 Parenthood Planned Griswold, Doe and
present
of
suggests
plurality
the
ante,
Danforth,
p. 52,
Missouri v.
their
case
assert
in this
allowing
physicians
the
In
three.
from those
naturally
flows
patients’
general
terms of the
is couched
conclusion
deed,
the
to assert
allowing physicians
appropriateness
of
“govern
patients in attacks on
of their
privacy interests
Ante,
decision.”
abortion
with the
mental
interference
115,
118.
merging
I
these cases as
do not read
With all respect,
purposes.
for constitutional
physician
patient
his
the
upon
not
the confiden-
they support turns
principle
upon
but
relationship
physician-patient
tial nature of a
relationship.
upon that
impact
the nature of the State’s
directly interdicted
normal
In each
instance
State
relationship by
physician-patient
functioning
In
procedures.
the circumstances
criminalizing certain
I
party to the rela-
agree
of direct
that one
interference,
tionship
permitted
should be
to assert
constitutional
judicial
for a
rule
self-restraint
the other,
preclude
proscription
should
an
on a State’s
not
attack
constitutionally protected activity.
Meyer
See also
Nebraska,
But
has
(1923).
C physicians special have offered no reason for allow- them to ing patients’ assert in an attack this I welfare can think of statute, and More- none. there persuasive reasons over, permit them to do so. It wholly seems as a of matter inappropriate, judicial for a self-governance, court reach unneces- sarily to decide a difficult constitutional issue in a case in which is nothing more at stake than remuneration for professional services. And this case well second, precedent set a that will prove difficult to cabin. No immediately reason comes to today’s after holding, mind, why provider any of services should be denied standing to assert his client’s or customer’s constitutional rights,
6 The plurality contends that assertion of third-party rights has been allowed where “the interference no more direct it than here,” ante, 7, Society at n. and cites Pierce Sisters, (1925). Pierce precedential little no value since did Court not address —or even mention —the issue of third-party rights in that case. importantly, More however, the interference functioning with the normal private school-parent relation ship complete was as proscribed: as if it had been as the statute “ required that public children be 'to sent a period school for the ” public of time during a school shall be held year,’ id., the current practical way parents at there was no to send their chil private dren to As the noted, schools. Court- inevitable “[t]he practical enforcing result of the Act . . would be . destruction appellees' primary schools,’ perhaps private all other primary schools for normal children within the Oregon.” Id., State of at 534. statute excludes an attack on a welfare
if any, coverage particular his transaction.7 from invites liti- holding Court’s Putting differently, legitimate least gation by perhaps those who parties. third seeking ground for assert proceeding “by assessing relevant plurality says it is factors per adopting than se , cases . . rather individual . set Ante, rules,” implies advocating that I am course. latter proposed I The fact is that have not such set of 119 n. 7. Rather, my grounded dissent rules. the decisions of today’s holding departs. I from which believe divining By previous factors, from cases two and two factors application “quickly yields alone, to the facts of this case whose result,” plurality proper ante, appears to have artic- third-party standing rule of ulated a new leaves little room *21 flexibility. plurality The ease with which would allow assertion nothing of such in this case—based on more substantial (or abortion-clinic) professional perhaps than a an relationship dimly perceived rightholder’s litiga- “obstacles” own suggests proper usually that “the result” third-party will be tion— standing. distinguish plurality’s attempt this case from the one next provider involving reassuring. another of services is not Three distinguishing one, factors suggested. are a first “confidential” analytically empty relationship, (especially recognizes when one that, realistically, the in relationship “confidential” a case of this assembly-line type kind often set in an clinic). abortion More- nearly over, unsupported by it is half of plurality the’cases upon finding “relationship” relies one of the two elements yielding third-party standing: there was no “confidential” relation- or, ship in Barrows opinion so far as shows, with Eisenstadt — respect to one defendants suggested Griswold. The second right that the distinction is woman’s this case “is one that impaired be I assertion.” do not understand how a woman’s litigation her over to malee impairs an abortion decision her ability Finally, to make decision. plurality falls back on the contention that claim “imminently woman’s here is moot,” a point plurality’s which the proves own citation to Roe to be irrele- As vant. these three insubstantial, “distinctions” seem repeat: I Today’s holding will be difficult cabin. today I certainly Before thought would not have that an interest in being compensated professional services, without would more, sufficiently be deemed a compelling justify reason to departing from rule of restraint well serves society judicial system. and our The Court quite recently respect with stated, against the rule assertion third-party rights well as certain other judicial doctrines of self-restraint, princi “[t]hese ples rest on more than the fussiness judges. They reflect the conviction sys that under our constitutional are tem courts not roving assigned pass commissions judgment the validity of the Nation’s laws. . . Con . judgments justified only stitutional . . . out of the necessity of adjudicating rights particular cases be litigants tween the brought before the Court.” Broad Oklahoma, rick v. (citation at 610-611 S., omitted). Today’s holding threatens to just make such “roving com missions” of the federal courts.