author: Mr. Justice Blackmun Mr. Justice Stevens, Mr. Justice Powell,

text:
    SINGLETON, CHIEF, BUREAU OF MEDICAL SERVICES, DEPARTMENT OF HEALTH AND WELFARE OF MISSOURI v. WULFF et al.
    No. 74—1393.
    Argued March 23, 1976
    Decided July 1, 1976

      Michael L. Boicaurt, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief was John G. Danforth, Attorney General.

      Frank Busman argued the cause and filed a brief for respondents.
   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, this case involves a claim of a State’s unconstitutional interference with the decision to terminate pregnancy. The particular object of the challenge is a Missouri statute excluding abortions that are not “medically indicated” from the purposes for which Medicaid benefits are available to needy persons. In its present posture, however, the case presents two issues not going to the merits of this dispute. The first is whether the plaintiff-appellees, as physicians who perform nonmedically indicated abortions, have standing to maintain the suit, to which we answer that they do. The second is whether the Court of Appeals, exercising jurisdiction because the suit had been dismissed in the District Court for lack of standing, properly proceeded to a determination of the merits, to which we answer that it did not.

I

Missouri participates in the so-called Medicaid program, under which the Federal Government partially underwrites qualifying state plans for medical assistance to the needy. See 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. IV). Missouri’s plan, which is set out in Mo. Rev. Stat. §§ 208.151-208.158 (Supp. 1975), includes, in § 208.152, a list of 12 categories of medical services that are eligible for Medicaid funding. The last is:

“(12) Family planning services as defined by federal rules and regulations; provided, however, that such family planning services shall not in-elude abortions unless such abortions are medically indicated.”

This provision is the subject of the litigation before us.

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. 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, 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 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”; “[infringes 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 2<D25.

The plaintiffs having responded to this motion with a memorandum and also with the affidavits described 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 statute was “obviously unconstitutional,” and it therefore appeared “that the case might well have been decided by one federal judge.” Id., at 1215. The court, accordingly, chose “to make final determination of this case.” Ibid. Proceeding to the merits, the court found a “clear violation of the Equal Protection Clause.” Ibid. The statute constituted a “special regulation on abortion,” and discriminated against both the patient and the physician “by reason of the patient’s poverty.” Id., at 1215-1216. Section 208.152 (12) was therefore declared unconstitutional by the Court of Appeals. Injunctive relief was felt to be unnecessary, it being assumed that the State would comply with the declaration and cease any discrimination between needy patients seeking therapeutic and nontherapeutic abortions. 508 F. 2d, at 1213-1216. We granted certiorari, limited to the two questions identified in the opening paragraph of this opinion. 422 U. S. 1041 (1975).

II

Although we are not certain that they have been clearly separated in the District Court’s and Court of Appeals’ opinions, two distinct standing questions are presented. We have distinguished them in prior cases, e. g., Data Processing Service v. Camp, 397 U. S., at 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. Ill 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 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 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. TV A, 297 U. S. 288, 345-348 (1936) (Brandéis, 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 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. 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 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 fhe 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 “[tjo 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.

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 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. In this respect, the judgment of the Court of Appeals is affirmed.

III

On this record, we do not agree, however, with the action of the Court of Appeals in proceeding beyond the issue of standing to a resolution of the merits of the case. Petitioner urges that this action was particularly inappropriate because the case is one in which the requested injunctive relief could be granted or denied on the merits only by a three-judge district court, with direct appeal here. We find it unnecessary to reach this contention, or the respondents’ arguments that a three-judge court was not required because the statute is so patently unconstitutional and because in any event only declaratory relief is warranted. Quite apart from these considerations, the Court of Appeals’ resolution of the merits 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.

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. 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 based on the effect of the statute on the constitutional rights of their patients. Because I am not sure whether the analysis in Part II-B would, or should, sustain the doctors’ standing, apart from those two facts, I join only Parts I, II-A, and III of the Court’s opinion.

Mr. Justice Powell,

with whom The Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join,

concurring in part and dissenting in part.

The Court holds that the respondents have standing to bring this suit and to assert their own constitutional rights, if any, in an attack on Mo. Rev. Stat. § 208.152 (12) (Supp. 1975). The Court also holds that the Court of Appeals erred in proceeding to the merits of respondents’ challenge. I agree with both of these holdings and therefore concur in Parts I, II-A, and III of Justice Blackmun’s opinion, as well as in the first four sentences of Part II-B.

The Court further holds that after remand to- the District Court the respondents may assert, in addition to their own rights, the constitutional rights of their patients who would be eligible for Medicaid assistance in obtaining elective abortions but for the exclusion of such abortions in §208.152 (12). I dissent from this holding.

I

As the Court notes, ante, at 109-110, respondents by complaint and affidavit established their Art. Ill standing to invoke the judicial power of the District Court. They have performed abortions for which Missouri’s Medicaid system would compensate them directly if the challenged statutory section did not preclude it. 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).

II

We noted in Warth, and the Court is careful to reiterate today, ante, at 112, that the Art. Ill 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. Ill 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. Ill 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.

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. TV A, 297 U. S. 288, 346-348 (1936) (Brandéis, 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. See Barrows v. Jack son, 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.

A

Our prior decisions are enlightening. In Barrows v. Jackson, supra, a covenantor who breached a racially restrictive covenant by -selling to Negroes was permitted to set up the buyers’ rights to equal protection hr 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 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, 124-25 (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 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. See 422 U. S., at 509-510; cf. McGowan v. Maryland, 366 U. S. 420, 430 (1961).

B

The plurality places primary reliance on a second element, the existence of a “confidential relationship” between the rightholder and the party seeking to assert her rights. Focusing on the professional relationships 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 in the procedure. 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. Ill standing because they aver injury in fact, but it does not justify abandonment of the salutary rule against assertion of third-party rights.

C

The physicians have offered no special reason for allowing them to assert their patients’ rights in an attack on this welfare statute, and I can think of none. Moreover, there are persuasive reasons not to permit them to do so. It seems wholly inappropriate, as a matter of judicial self-governance, for a court to reach unnecessarily to decide a difficult constitutional issue in a case in which nothing more is at stake than remuneration for professional services. And second, this case may well set a precedent that will prove difficult to cabin. No reason immediately comes to mind, after today’s holding, why any provider of services should be denied standing to assert his client’s or customer’s constitutional rights, if any, in an attack on a welfare statute that excludes from coverage his particular transaction.

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. 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.

        Planned Parenthood of Missouri v. Danforth, ante, p. 52, Bellotti v. Baird, post, p. 132.

       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.

       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.

       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.

       We have reiterated that holding today in Planned Parenthood of Missouri v. Danforth, ante, at 62.

       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.

       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 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 mofe 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.

       These examples are not intended to be exclusive.

         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.

       The inquiry also has been framed, in appropriate cases, as whether a person with Art. Ill 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,
        413 U. S. 601, 611-618 (1973). Cf. generally United States v. Richardson, 418 U. S. 166, 196 n. 18 (1974) (Powell, J., concurring).

       1 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. TV A, 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. Ill 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. Ill 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. Ill standing the right to assert the interests of third parties or even the public interest. See Warth v. Seldin, supra, at 500-501.

       The plurality retrospectively analyzes the facts in Banows, 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 NAA.CP 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 right-holder’s assertion of her own rights. There simply is no such obstacle here.

       The plurality’s primary emphasis upon this relationship is in marked contrast to the Court’s previous position that the relationship between litigant and rightholder was subordinate in importance to “the impact of the litigation on the third-party interests.” Eisenstadt v. Baird, 405 U. S. 438, 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.

       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.

       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 malee 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.


source: Caselaw Access Project

author: Mr. Justice Blackmun

license: Public Domain

text:
    BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS, et al. v. BAIRD et al.
    No. 75-73.
    Argued March 23, 1976
    Decided July 1, 1976

      S. Stephen Rosenfeld, Assistant Attorney General of Massachusetts, argued the cause for appellants in No. 75-73. With him on the brief were Francis X. Bellotti, Attorney General, pro se, and Michael Ehy and Garrick F. Cole, Assistant Attorneys General. Brian A. Riley argued the cause pro hac vice for appellant in No. 75-109. With him on the brief were Thomas P. McMahon and Thomas P. Russell.

      Roy Lucas argued the cause and filed a brief for appel-lees in both cases.

      Together with No. 75-109, Hunerwadel v. Baird et al., also on appeal from the same court.

   Mr. Justice Blackmun

delivered the opinion of the Court.

In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by the Supreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal.

I

On August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled “An Act to protect unborn children and maternal health within present constitutional limits.” The Act, Mass. Acts and Resolves 1974, c. 706, § 1, amended Mass. Gen. Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding §§ 12H through 12R. Section 12P provides:

“(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother’s parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother.
“If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient.
“(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files.
“Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve it.”

All nonemergency abortions are made subject to the provisions of § 12P by § 12N. Violations of § 12N are punishable under § 12Q by a fine of not less than $100 nor more than $2,000. Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.

II

On October 30, 1974, one day prior to the effective date of the Act, plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U. S. C. §§ 1343 (3), 1331, and 2201, and 42 U. S. C. § 1983, and claiming that § 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U. S. C. §§ 2281 and 2284.

On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of § 12P, and accepting the request for a three-judge court. Record Doc. 2.

The plaintiffs, and the classes they purported to represent, are:

1. William Baird, a citizen of New York.

2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 13, 43.

3. Mary Moes I, II, III, and IY, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents. Id., at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by § 12P. App. 13,43.

4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. Ibid.

The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth.

Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated. App. 24.

On November 13, appellants filed a “Motion to dismiss and/or for summary judgment,” arguing, inter alia, that the District Court “should abstain from deciding any issue in this case.” Id., at 23. In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that § 12P, particularly in view of its judicial-review provision, “was susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question.” Record Doc. 5, p. 12. They cited Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), and Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 610-511 (1972), for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained.

The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, 1975, the three-judge District Court, by a divided vote, handed down a decision holding § 12P unconstitutional and void. 393 F. Supp. 847. An order was entered declaring § 12P “and such other portions of the chapter [112] .insofar as they make specific reference thereto” void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34.

The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed classes, 393 F. Supp., at 850-852, and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, id., at 849-850. It found that “a substantial number of females under the age of 18 are capable of forming a valid consent,” and viewed the overall question as “whether the state can be per-miited to restrain the free exercise of that consent, to the extent that it has endeavored to do so.” Id., at 855.

In regard to the meaning of § 12P, the majority made the following comments:

“1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it.
“2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute’s provision calling for the minor’s own consent recognizes that at least some minors can consent, but the minor’s consent must be supplemented in every case, either by the consent of both parents, or by a court order.
“4. The statute does not purport simply to provide a check on the validity of the minor’s consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests.” 393 F. Supp., at 855.
“The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation.” Id., at 855 n. 10.
“The parents not only must be consulted, they are given a veto.” Id., at 856.

The majority observed that “ ‘neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967, 387 U. S. 1, 13,” ibid., and, accordingly, held that the State cannot control a minor’s abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that “the statute is cast not in terms of protecting the minor . . . but in recognizing independent rights of parents,” the majority concluded that “[t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own?” Ibid.

The majority found that in the instant situation, unlike others, the parents’ interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central Missouri v. Danforth, 392 P. Supp. 1362 (ED Mo. 1975), see ante, p. 52, concluded:

“But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child’s, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected.” 393 F. Supp., at 857.

The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, “have been deprived of their legal rights without due process of law,” ibid., that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Id., at 857-865.

Most important, however, the dissent’s view of the statute differed markedly from the interpretation adopted by the majority. The dissent stated:

“I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents™ ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents’ refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion.” Id., at 864.

The indicated footnote reads:

“The majority speculate concerning possible interpretations of the 'for good cause shown’ language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute.” Id., at 864 n. 15.

Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central Missouri v. Danforth, ante, p. 52, and its companion cross-appeal. 423 U. S. 982 (1975).

Ill

Appellants and intervenor-appellant attack the District Court’s majority decision on a number of grounds. They argue, inter alia, and each in their or her own way, that § 12P properly preserves the primacy of the family unit by reinforcing the role of parents in fundamental decisions affecting family members; that the District Court erred in failing to join Moe I’s parents; that it abused its discretion by failing to appoint a guardian ad litem; and that it erred in finding the statute facially invalid when it was capable of a construction that would withstand constitutional analysis.

The interpretation placed on the statute by appellants in this Court is of some importance and merits attention, for they are the officials charged with enforcement of the statute.

Appellants assert, first, that under the statute parental consent may not be refused on the basis of concerns exclusively of the parent. Indeed, “the ‘competing’ parental right consists exclusively of the right to assess independently, for their minor child, what will serve that child’s best interest. ... [I]n operation, the parents’ actual deliberation must range no further than would that of a pregnant adult making her own abortion decision.” Brief for Appellants 23. And the superior court’s review will ensure that parental objection based upon other considerations will not operate to bar the minor’s abortion. Id., at 22-23. See also Brief for In-tervenor-Appellant 26.

Second, appellants argue that the last paragraph of § 12P preserves the “mature minor” rule in .Massachusetts, under which a child determined by a court to be capable of giving informed consent will be allowed to do so. Appellants argue that under this rule a pregnant minor could file a complaint in superior court seeking authorization for an abortion, and, “[ijmportantly, such a complaint could be filed regardless of whether the parents had been consulted or had withheld their consent.” Brief for Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the intervenor-appel-lant assert that the procedure employed would be structured so as to be speedy and nonburdensome, and would ensure anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26.

Finally, appellants argue that under § 12P, a judge of the superior court may permit an abortion without parental consent for a minor incapable of rendering informed consent, provided that there is “good cause shown.” Brief for Appellants 38. “Good cause” includes a showing that the abortion is in the minor’s best interests. Id., at 39.

The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a “parental veto.”

Appellees, however, on their part, take an entirely different view of the statute. They argue that the statute creates a right to a parental veto, that it creates an irrebuttable presumption that a minor is incapable of informed consent, and that the statute does not permit abortion without parental consent in the case of a mature minor or, in the case of a minor incapable of giving consent, where the parents are irrationally opposed to abortion.

Appellees specifically object to abstention. Their objection is based upon their opinion that “the statute gives to parents of minors an unbridled veto,” Brief for Appellees 49, and that once that veto is exercised, the minor has the burden of proving to the superior court judge that “good cause” exists. Ibid. They view the “good cause” hearing as forcing the judge to choose “between the privacy rights of the young woman and the rights of the parents as established by the statute.” Ibid. Assuming that “good cause” has a broader meaning, appellees argue that the hearing itself makes the statute unconstitutional, because of the burden it imposes and the delay it entails. Ibid.

IV

In deciding this case, we need go no further than the claim that the District Court should have abstained pending construction of the statute by the Massachusetts courts. As we have held on numerous occasions, abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary “which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.” Harrison v. NAACP, 360 U. S. 167, 177 (1959). See also Colorado River Cons. Dist. v. United States, 424 U. S. 800, 813-814 (1976); Carey v. Sugar, 425 U. S. 73, 78-79 (1976); Kusper v. Pontikes, 414 U. S. 51, 54-55 (1973); Lake Carriers’ Assn. v. MacMullan, 406 U. S., at 510—511; Zwickler v. Koota, 389 U. S. 241, 249 (1967); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941).

We do not accept appellees’ assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a “parental veto,” require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent.

In Planned Parenthood of Central Missouri v. Danforth, we today struck down a statute that created a parental veto. Ante, at 72-75. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult, is not unconstitutional unless it unduly burdens the right to seek an abortion. In this case, we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent. Without holding that a requirement of a court hearing would not unduly burden the rights of a mature adult, cf. Doe v. Rampton, 366 F. Supp. 189 (Utah 1973), we think it clear that in the instant litigation adoption of appellants’ interpretation would “at least materially change the nature of the problem” that appellants claim is presented. Harrison v. NAACP, 360 U. S., at 177.

Whether the Supreme Judicial Court will so interpret the statute, or whether it will interpret the statute to require consideration of factors not mentioned above, impose burdens more serious than those suggested, or create some unanticipated interference with the doctor-patient relationship, we cannot now determine. Nor need we determine what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome. It is sufficient that the statute is susceptible of the interpretation offered by appellants, and we so find, and that such an interpretation would avoid or substantially, modify the federal constitutional challenge to the statute, as it clearly would. Indeed, in the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented.

Appellees also raise, however, a claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion, and the consent required in regard to other medical procedures. This issue has come to the fore through the advent of a Massachusetts statute, enacted subsequent to the decision of the District Court, dealing with consent by minors to medical procedures other than abortion and sterilization. As we hold today in Planned Parenthood, however, not all distinction between abortion and other procedures is forbidden. Ante, at 80-81. The constitutionality of such distinction will depend upon its degree and the justification for it. The constitutional issue cannot now be defined, however, for the degree of distinction between the consent procedure for abortions and the consent procedures for other medical procedures cannot be established until the nature of the consent required for abortions is established. In these circumstances, the federal court should stay its hand to the same extent as in a challenge directly to the burdens created by the statute.

Finally, we note that the Supreme Judicial Court of Massachusetts has adopted a Rule of Court under which an issue of interpretation of Massachusetts law may be certified directly to that court for prompt resolution. Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 (1976). This Court often has remarked that the equitable practice of abstention is limited by considerations of “ The delay and expense to which application of the abstention doctrine inevitably gives rise.' ” Lake Carriers’ Assn. v. MacMullan, 406 U. S., at 509, quoting England v. Medical Examiners, 375 U. S. 411, 418 (1964). See Kusper v. Pontikes, 414 U. S., at 54. As we have also noted, however, the availability of an adequate certification procedure “does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). This Court has utilized certification procedures in the past, as have courts of appeals. Ibid, and cases cited therein at 390 nn. 5 and 6.

The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis. Further, in light of our disapproval of a “parental veto” today in Planned Parenthood, we must assume that the lower Massachusetts courts, if called upon to enforce the statute pending interpretation by the Supreme Judicial Court, will not impose this most serious barrier. Insofar as the issue thus ceases to become one of total denial of access and becomes one rather of relative burden, the cost of abstention is reduced and the desirability of that equitable remedy accordingly increased.

V

We therefore hold that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of § 12P and the procedure it imposes. In regard to the claim of impermissible discrimination due to the 1975 statute, a claim not raised in the District Court but subject to inquiry through an amended complaint, or perhaps by other means, we believe that it would not be inappropriate for the District Court, when any procedural requirement has been complied with, also to certify a question concerning the meaning of the new statute, and the extent to which its procedures differ from the procedures that must be followed under § 12P.

The judgment of the District Court is vacated, and the cases are remanded to that court for proceedings consistent with this opinion.

It is so ordered.

       Prior to the passage of the 1974 Act there were already in existence a § 12H and a § 121 of c. 112. These were added by Mass. Acts and Resolves 1973, c. 173, § 1, and c. 521, § 1, respectively. The former called for the printing of the physician’s name on a prescription blank, and the latter concerned one’s right not to participate in an abortion or sterilization procedure, and to be free from damages claims or discipline for exercising that right.
      These pre-existing §§ 12H and 121 have not been repealed. Consequently, due to this legislative oversight, Massachusetts has two statutes denominated § 12H of c. 112, and two denominated § 121 of that chapter. This opinion, however, concerns only the 1974 legislation.

        “Section 12N. Except in an emergency requiring immediate action, no abortion may be performed under sections twelve I [before 24 weeks] or twelve J [24 weeks or more] unless
      “(1) the written informed consent of the proper person or persons has been delivered to the physician performing the abortion as set forth in section twelve P and
      “(2) if the abortion is during or after the thirteenth week of pregnancy it is performed in a hospital duly authorized to provide facilities for general surgery.
      “Except in an emergency requiring immediate action no abortion may be performed under section twelve J unless performed in a hospital duly authorized to provide facilities for obstetrical services.”

       Section 12Q provides in pertinent part:
      “Any person who willfully violates the provisions of sections twelve N or twelve 0 shall be punished by a fine of not less than one hundred dollars nor more than two thousand dollars.”

        “Section 1SR. The attorney general or any person whose consent is required either pursuant to section twelve P or under common law, may petition the superior court for an order enjoining the performance of any abortion that may be performed contrary to the provisions of sections twelve I through twelve Q.”

       Unless a statute is declared an emergency or may not be made the subject of a referendum petition, a law passed by the General Court does not take effect “earlier than ninety days after it has become a law.” Mass. Const. Amend., Art. 48, Referendum, pt. I (1963).

       Because of the temporary restraining order and the injunction subsequently issued by the three-judge court, Jurisdictional Statement in No. 76-73, pp. A-33, A-34; App. 45-46, the parental-consent provisions of § 12P have not yet been effective.

       The complaint as originally filed, named only Mary Moe I and Mary Moe II as the pregnant minor plaintiffs, with affidavits concerning their status attached. App. 16-18. Thereafter, in November 1974, affidavits were executed by Mary Moe III and Mary Moe IV. Id., at 19-22. The motion to certify the plaintiffs' classes, filed December 9, 1974, refers to the four Mary Moes. Similarly, the District Court referred to the fact that four Mary Moes were named in the action. 393 F. Supp. 847, 849, and n. 1 (1975). The record does not disclose how or when Mary Moes III and IV were added as parties plaintiff. In any event, Mary Moes II, III, and IV were dismissed from the suit for failure to adduce evidence supporting their standing, id., at 849 n. 1, and they have not appealed that ruling. The way in which Mary Moes III and IV entered the case, therefore, is of no concern to us here.
      We note that the fact the pregnancy of Mary Moe I has been terminated (through an abortion performed under the protection of the temporary restraining order entered by the District Court, id., at 850 n. 4) in no way moots the case. Roe v. Wade, 410 U. S. 113, 124-125 (1973).

       Also permitted to intervene as defendants were Kathleen Roth and others, parents situated similarly to Hunerwadel, and Jane Doe, an anonymous parent of a pregnant unmarried minor. The District Court dismissed all the intervenors except Hunerwadel for failure to adduce facts necessary to show standing. 393 F. Supp., at 850. Technically, these dismissed intervenors, who have not appealed, might well be classified as appellees under our Rule 10 (4). Their status, however, does not affect the disposition of these cases.

       In regard to appellee Baird, the majority stated: “In the light of the unassailable standing of other plaintiffs ... we do not pass on the question of Baird’s standing.” 393 F. Supp., at 851.

       It is not entirely clear that appellants suggested the same interpretation in the District Court as they suggest here. See 393 F. Supp., at 855. Nevertheless, the fact that the full arguments in favor of abstention may not have been asserted in the District Court does not bar this Court’s consideration of the issue. Cf. Wisconsin v. Constantineau, 400 U. S. 433, 437 (1971).
      The practice of abstention is equitable in nature, see Railroad Comm’n v. Pullman Co., 312 U. S. 496, 500-501 (1941), and it would not be improper to consider the effect of delay caused by the State’s failure to suggest or seek a constitutional interpretation. Cf. Baggett v. Bullitt, 377 U. S. 360, 379 (1964). In the instant case, however, there has been no injury to appellees’ rights due to the delay (if any) in the appellants’ coming forward with the interpretation they now espouse. As a result of the various orders of the District Court, the challenged portion of the statute has never gone into effect. Nor can we adopt the view that once a request for abstention is made, it is beyond the power of the District Court to consider possible interpretations that have not been put forth by the parties. Indeed, it would appear that abstention may be raised by the court sm sponte. See Railroad Comm’n v. Pullman Co., supra. Cf. England v. Medical Examiners, 375 U. S. 411, 413 (1964).

       “Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R.”

       See generally Planned Parenthood of Missouri v. Danforth, ante, p. 52; Poe v. Gerstein, 517 F. 2d 787 (CA5 1975), appeal docketed, No. 75-713; Jackson v. Guste, Civ. Action No. 74-2425 (ED La. Jan. 26, 1976); Doe v. Zimmerman, 405 F. Supp. 534 (MD Pa. 1975); Doe v. Exon, Civ. Action No. CV 75-L-146 (Neb. Oct. 8, 1975); Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975); Foe v. Vanderhoof, 389 F. Supp. 947 (Colo. 1975); Gary-Northwest Indiana Women’s Services v. Bowen, Civ. Action No. H-74-289 (ND Ind. Jan. 3, 1975); Wolfe v. Schroering, 388 F. Supp. 631 (WD Ky. 1974); State v. Koome, 84 Wash. 2d 901, 530 P. 2d 260 (1975).

       [The statute can] force a pregnant sixteen year old to become a seventeen year old mother because her own mother wants a grandchild.” Brief for Appellees 33.

       “[T]he parental consent statute constitutes a legislative decree that no person under age 18 is competent to consent to an abortion. This contravenes the line of decisions which have struck down certain irrebutable presumptions as violative of due process.” Id., at 42.

       “The statute has no exception for mature minors, or other minors with immature, emotionally upset parents.” Id., at 46.

       As stated in n. 6, supra, the challenged portion of the statute has never gone into effect. The heated debate among the parties over the meaning of the statute is a strong indication of the ambiguities it contains. We assume that the Supreme Judicial Court will do everything in its power to interpret the Act in conformity with its title: “An Act to protect . . . within present constitutional limits.” See Boehning v. Indiana State Employees Assn., 423 U. S. 6 (1975).

       Prior to the enactment of that statute, the consent procedure in regard to abortion, at least as interpreted by appellants, was arguably merely a codification of the common law. See Brief for Appellants 24-39. The new legislation, Mass. Acts and Resolves 1975, c. 564, approved Aug. 28, 1975, reads:
      “Chapter 112 of the General Laws is hereby amended by striking out section 12F, as amended by section 1 of chapter 335 of the acts of 1971, and inserting in place thereof the following section:
      “Section 12F.
      “No physician, dentist or hospital shall be held liable for damages for failure to obtain consent of a parent, legal guardian, or other person having custody or control of a minor child, or of the spouse of a patient, to emergency examination and treatment, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient.
      “Any minor may give consent to his medical or dental care at the time such care is sought if (¿) he is married, widowed, divorced; or (n) he is the parent of a child, in which case he may also give consent to medical or dental care of the child; or (in) he is a member of any of the aimed forces; or (iv) she is pregnant or believes herself to be pregnant; or (v) he is living separate and apart from his parent or legal guardian, and is managing his own financial affairs; or (vi) he reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health pursuant to section six of chapter one hundred and eleven; provided, however, that such minor may only consent to care which relates to the diagnosis or treatment of such disease.
      “Consent shall not be granted under subparagraphs (ii) through (vi), inclusive, for abortion or sterilization.
      “Consent given under this section shall not be subject to later dis-affirmance because of minority. The consent of the parent or legal guardian shall not be required to authorize such care and, notwithstanding any other provisions of law, such parent or legal guardian shall not be hable for the payment for any care rendered pursuant to this section unless such parent or legal guardian has expressly agreed to pay for such care.
      “No physician or dentist, nor any hospital, clinic or infirmary shall be hable, civilly and criminally, for not obtaining the consent of the parent or legal guardian to render medical or dental care to a minor, if, at the time such care was rendered, such person or facility: (i) relied in good faith upon the representations of such minor that he is legally able to consent to such treatment under this section; or

        (n) relied in good faith upon the representations of such minor that he is over eighteen years of age.
      “All information and records kept in connection with the medical or dental care of a minor who consents thereto in accordance with this section shall be confidential between the minor and the physician or dentist, and shall not be released except upon the written consent of the minor or a proper judicial order. When the physician or dentist attending a minor reasonably believes the condition of said minor to be so serious that his life or limb is endangered, the physician or dentist shall notify the parents, legal guardian or foster parents of said condition and shall inform the minor of said notification.”

       There is no indication that the Massachusetts certification procedure is inadequate. Indeed, the dissent in the District Court cited a prior case in which the procedure was employed with no apparent difficulty. 393 P. Supp., at 864 n. 15, citing Hendrickson v. Sears, 495 P. 2d 513 (CA1 1974).