SINGLETON v. WULFF

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Argument of Michael L. Boicourt

Chief Justice Warren E. Burger: We will argument next in Singleton against Wulff 1393.

Mr. Michael L. Boicourt: Mr. Chief Justice and may it please the Court.

This matter comes on for hearing upon the grant by the Court of the writ of certiorari to the United States Court of Appeals for the Eighth Circuit limited to two specific questions.

The first issue is whether the respondents who are two St. Louis physicians licensed to practice Medicine in Missouri has standing to challenge in Federal Courts, the constitutionally of the Missouri state statute which provides that benefit payment maybe made to eligible needy persons for medical assistance, including medical assistance for family planning services but that such family planning services shall not include abortions unless same are medically indicated.

The second issue over which the Court has accepted the certiorari is whether the Eighth Circuit had jurisdiction to take under consideration and determine the constitutionally of a state statute on appeal from an order of the District Court dismissing a complaint for lack of standing.

A three-judge panel of the United States District Court for Eastern District of Missouri dismissed count two, which we are now concerned with the other two counts not having been appealed to the Court of Appeals.

Respondents complaint on the basis that although the issue itself may have been judicable, the two physicians who brought the law suit were not the proper parties to allege in Federal Courts that this particular statute was unconstitutional.

This order granting the petitioner's motion to dismiss was appealed to United States Court of Appeals for the Eighth Circuit.

The Eighth Circuit Court found, first that the District Court was incorrect in its decision on standing and reversed the action of the District Court in finding that these two physicians do not have standing.

But the Court below did not stop at that point, the Court went on to the determine that it had jurisdiction to reach the merits of the respondent's constitutional claims on the basis of the state statute challenge was so obviously constitutional is not to require remand.

After the Court then took up the constitutional merits of the original complaint, the lower Court ruled that this particular statute was especially unconstitutional to the violation of the Equal Protection Clause.

Count two with which we are concerned which, the plaintiff's complaint which was filed in the Eastern District Court of Missouri included all necessary allegations in order to invoke a three-Judge District Court statute passed by Congress.

The allegation was that the language in Missouri statute, that medical benefit payments will not be made else, only the needy persons for family planning services for abortions unless such abortions are medically indicated was unconstitutional.

Respondents purported to bring their action on their own behalf and on the behalf of the entire class of duly licensed physicians in Missouri, presently performing or desiring to perform abortions upon women, minors and adults were eligible for Missouri state Medicaid assistants.

In response to the complaint, the petitioner filed a motion to dismiss which among other things raised the point that the respondent physicians did not have sufficient standing to adjudicate the constitutionally of this particular statute.

The only factual matters which went on the record before the District Court ruled on that motion to dismiss was a limited number of answers to interrogatories by the petitioner in which he noted that he knew no official interpretation to the challenged language and that no medically indicated abortion payments had been made over a period of three months.

An affidavits of the doctors attached to their suggestions and our position to our motion to dismiss, to the effect that they were unsure as to what the statutory language met, how it would be interpreted, that this uncertainty as to its interpretation chilled their ability to practice medicine as the they deemed most expertise.

This was the entire record on which the Court of Appeals based its decision to dismiss on the basis of standing.

And that was the entire record that went to Eighth Circuit when the respondent doctors in this case chose to appeal that order.

Justice William H. Rehnquist: Mr.Boicourt does the record show whether or not the payments in question would have gone to the patient and then to the doctor or would have gone directly to the doctor?

Mr. Michael L. Boicourt: As I understand the system, Mr. Justice Rehnquist the patient makes application for the Medicaid benefit payments, since that in to the state.

The state then on behalf of the patient sends the money itself directly to the treating physician.

At the time that the Eighth Circuit took up this matter on appeal, petitioner had never filed an answer.

No meaningful discovery had been conducted by their party.

The record before the Eighth Circuit pertaining to the constitutionality of this statute consisted solely of conclusary allegations included in the original complaint in the District Court.

The District Court had not conducted a hearing into the constitutionally of the statute and had made absolutely no pronouncement as to its beliefs concerning the statute's constitutional merits.

In addition, the petitioners never had the opportunity to present evidence to brief or to argue the constitutional claims included in original complaint.

Nevertheless, the Court below not only reversed on the issue of standing, they went on to find that it had jurisdiction to hold that the statute was facially unconstitutional.

Chief Justice Warren E. Burger: (Inaudible) the oral argument to these issues?

Mr. Michael L. Boicourt: In the Eighth Circuit, your Honor, the petitioner did not brief or discuss the merits below, believing that it was appealed solely from an order dismissing for lack of standing.

The respondents did brief rather extensively whether or not the statute was constitutional or not.

Again, it will be our point that their brief and argument concerning that matter was not responsive to the purposes of the appeal.

That is an appeal from a final order dismissing for lack of standing not on the basis of the statute when unconstitutional.

Justice William H. Rehnquist: Or are you under some notice though I take it that, since they were the appellant, that they were at least urging the unconstitutionality of the statute before the Eighth Circuit?

Mr. Michael L. Boicourt: We certainly got their brief first and they did brief the constitutionality of statute.

However as I said, we did not feel that was responsive to the notice of appeal itself or to what the District Court did.

If the Court should agree on appeal with the District Court that these physicians do not have sufficient standing to adjudicate this matter, it will not be necessary in my opinion for the Court to reach the second issue.

The respondents in effect will be out of the court in any consideration as to merits will be then be moot.

In regard to standing the question before the Court is not in an abstract sense, whether section 208.152 (12) the revised statute to Missouri is or is not unconstitutional or whether the issue of this constitutionally is judicable question again in an abstract sense.

Rather it is necessary that the respondent physicians allege and have support in the record before the Court that they are proper parties to litigate in the Federal Courts, this constitutional claim.

The only personal interest which I believe the respondents can claim is the existence of some degree of confusion as to the source of payments for abortions performed on the specific class of present and perspective patients.

And if the respondents even with the best of intentions are expressing only their moral indignation at the statute or if they are trying to represent the interest of pregnant welfare women who they feel are being discriminated against by the statute, even at their perspective patients, that is not enough for them to have standing to use the Federal tribunals and to take up the dockets of the Federal Court to adjudicate this issue about which they have no personal interest.

I do not believe that the Federal Court should become a form for morally righteous crusade.

Justice William H. Rehnquist: Do the doctors not make any claim that they would have gotten money through this plan, if the section which they claim was unconstitutional, were stricken and that they did not get the money without it?

Mr. Michael L. Boicourt: The actual claim in their complaint, your honor, was that they did not know what the interpretation of the section was and therefore they were deterred in the practice of Medicine not knowing whether they may or they may not paid by state of Missouri for abortions performed on eligible welfare recipients.

Justice William H. Rehnquist: (Inaudible) they were to be paid, they would have done --

Mr. Michael L. Boicourt: Certainly, the inference is made in their complaint that they would be ultimate source of welfare moneys paid out by the state of Missouri but for the existence of the statute.

However, in regard to whether or not they might be the ultimate recipient of Medicaid moneys paid by the state of Missouri I still think that the traditional standing requirements arising out of Article 3 of Federal Constitution requires that they be able to show a personal and direct detriment which arises out of alleged unconstitutionality.

Now, any monetary detriment to the respondent physicians in this case is indirect.

It does not arise out of any alleged unconstitutionality.

It arises out of the perspective decisions by patients and perspective patients regarding abortions, whose decision on behalf of the patients, may or may not be affected by the existence of the statute.

In other words if this statute is to be attacked on the grounds of its unconstitutionality and if the Federal Courts ought to accept that attack as a judicable question and consider it, the proper parties to adjudicate the matter are not the respondent physicians but rather they are the pregnant women who are most directly affected by the conjecture operation of the statute.

I think it is obvious from a reading of the multitude of cases cited on both briefs that pregnant woman have certainly been able to participate in the Federal Court process involving abortion litigation.

I think it is even more apparent that they are protected in this participation by the use of such names as Roe and Doe which would protect them from any embarrassment arising out of their supporting their constitutional right to an abortion.

I think that given the protection of this Court has found that it can give to the unanimity for women desiring to participate an abortion litigation certainly unnecessary for the Federal Court to entertain litigation which is brought by persons not within the direct personal causation line of the statute and constitutional provisions concerned in what they desire that had to be done.

In Roe and Doe the Court determined that the constitutional right to privacy was broad enough to encompass a woman’s decision whether or not to terminate her pregnancy, unless the woman’s right to privacy that is protected by constitution, but certainly she could consult with the physician to assist her in exercising her decision making process.

But is still her right which is protected by the constitutional her privacy.

To be sure in Doe versus Bolton, physicians were found to have standing to participate in the litigation but not on the basis of constitutional right to privacy rather on the basis that they were to suffer direct personal detriment from the existence of statutes under which they could be criminally prosecuted in the state Courts of Georgia.

The challenged Missouri statute does not subject the physician respondents to any criminal prosecution.

The status of respondents is more closely akin I believe to the childless married couple in Roe versus Wade who asserted that if the wife became pregnant in the future, they would desire an abortion—like that childless married couple, the respondent may choose to perform abortions on legit women.

And those women, if eligible, may choose to apply for Medical assistance as a means for providing the respondents a pay.

Unknown Speaker: If you prevail here what is likely to happen, to be back and start all over again with proper plan?

Mr. Michael L. Boicourt: Well that will up to the people who are pushing a particular legislation or I think it is likely that they will seek out plaintiffs who are proper parties to litigate the constitutionality of the statue.

Unknown Speaker: What would you gain with that in the long run?

Mr. Michael L. Boicourt: Well, for one thing what we really want to gain, that comes up on the second issue we want to have hearing on constitutionality of the statute.

Secondly we do not think that the state of Missouri or officials of the state of Missouri should be subjected in the Federal Courts to crusading type law suits like this one is.

It is a matter or not only of gaining in this case but it gaining in the future--

Unknown Speaker: (Inaudible) just as much of a crusading type law suit if you have a female patient plaintiff in addition to the doctors?

Mr. Michael L. Boicourt: Well, crusading to--

Unknown Speaker: …or that accusation for?

Mr. Michael L. Boicourt: To that extent your Honor but if the state is to be and we are constantly subjected to law suits in order to keep this to a reasonable minimum, I think that the Federal Court should require that the people bring those law suits, satisfy the traditional standing requirements of Article 3 of the Federal constitution.

Unknown Speaker: But my question was premised on the event of you prevailing here.

I just wonder what you are hoping to gain in the long run?

Mr. Michael L. Boicourt: Well, again Your Honor, it probably not as much of existence of what we gain in this particular case, is that the principle that stands for that if the state is to be sued in Federal Courts, the proper parties only would be ones who would be entertained.

Unknown Speaker: I would like you to pause for a moment, would you help me on procedure here again I know you covered it I am a little bit lost?

Mr. Michael L. Boicourt: Yes, Sir.

Unknown Speaker: What exactly is the posture counts one and three?

Mr. Michael L. Boicourt: Counts one and three were also dismissed but were are not appealed.

Unknown Speaker: Were not appealed…

Mr. Michael L. Boicourt: And the petitioner in this case was not the defendant with regard the counts one and three.

Unknown Speaker: That is as to the standing question there, it would appear to have been standing for the doctors in those counts, I take I that you would have--

Mr. Michael L. Boicourt: They were dismissed on other grounds, lack of case or controversy in both cases.

Unknown Speaker: I see, thank you.

Mr. Michael L. Boicourt: Both Federal Medicaid laws in Missouri state statutes are designed to afford optimum relief to eligible persons whose applications for Medicaid assistance is denied or is agreed or whose interest in their application of Medicaid’s assistance are agreed in that interest because the statutory framework provides that they have a right to seek a hearing, specifically provides that.

And that if they are not satisfied with that hearing, they have a specific right to appeal to the appropriate Court.

The physicians are not in any way in the Federal Medicaid laws earn the state statutes which enforce Medicaid laws in Missouri.

Physicians are not covered, they are not covered in any manner, no mention is made that their right to participate in the hearing of their right to object to the failure of an application for Medicaid assistance to go through.

I think it is clear that the statutory framework which Congress in state of Missouri has created is designed on behalf of poor people.

It logically follows that the welfare recipient, the poor person, should be the one and was intended by Congress in Missouri legislature to be one who could challenge of a portion of that statutory framework which he or she found to be objectionable or which he or she believed to be unconstitutional.

Nor do, the constitutional provisions under which respondents claim the statute to be unconstitutional protect the interest they assert.

I think the lack of standing is very clear unlike the second portion of the test that this Court created in data processing in Barlow cases.

I do not believe that respondent standing cannot be made just to stand up under the zone of interest test.

In the first place, Roe and Doe said that the right to privacy encompassed the woman’s freedom to the abortion alternative to her pregnancy.

Certainly, the physician who performs that pregnancy does not share that right to privacy.

He may consult with her and give her assistance in making her decision but the constitutional right to privacy which is protected of Roe and Doe cannot be said to extend to the physician.

Therefore, I do not think that the respondent in this case can maintain that they are within the zone of interest protected by the Due Process clause and the right of privacy it includes.

A court below when reached the merits found that this statute denied Equal Protection Clause because it discriminated against women who chose the abortion alternative to their pregnancy.

If in fact the statute does constitute invidious discrimination and we do not concede that, we would like to have a hearing.

The people discriminated against are the poor women who want to have an abortion rather than take their pregnancy deterrent.

I do not think that the respondents can maintain that they within the zone of interest protected by the Equal Protection in Clause in that regard.

Chief Justice Warren E. Burger: District Court saw an un-constitutional question, is it?

Mr. Michael L. Boicourt: No, I do not think that is clear at all your honor, the District Court in fact impaneled the three-judge court, that it found no substantial constitutional question, one judge could have taken care of the matter.

Chief Justice Warren E. Burger: (Voice overlap)

Mr. Michael L. Boicourt: If the Judge who impaneled the three-judge Court --

Chief Justice Warren E. Burger: (Voice overlap) the Court of Appeals if they decided the case on the constitutional ground.

Mr. Michael L. Boicourt: Would not have got to the Court of Appeals in that case --

Chief Justice Warren E. Burger: I beg your pardon.

Mr. Michael L. Boicourt: Excuse me, would you please repeat the question Mr. Chief Justice?

Chief Justice Warren E. Burger: When the case first went in to the District Court, it went to a three-judge Court, did it not?

Mr. Michael L. Boicourt: Yes, your honor.

Chief Justice Warren E. Burger: And then what did the three-judge Court do?

Mr. Michael L. Boicourt: They dismissed for lack of standing.

Chief Justice Warren E. Burger: Then that was essentially the same as the action of single District Judge was it s not?

Mr. Michael L. Boicourt: Under Gonzales, it certainly was Your Honor.

Chief Justice Warren E. Burger: So, otherwise it could not have gone to the Court of Appeals in this posture could it?

Mr. Michael L. Boicourt: That is correct.

Chief Justice Warren E. Burger: Then you pointed that the Court of Appeals immediately took on the constitutional question which the District Court did not reach?

Mr. Michael L. Boicourt: Yes, Your Honor, of course, I think --

Chief Justice Warren E. Burger: But do you think their proper procedure should have been on that issue, if they were going to be decided to send it back to the three-judge Court to reach constitutional issue?

Mr. Michael L. Boicourt: Yes, your honor.

I think it should be remanded to the three-judge Court to reach the constitutional allegations of the complaint.

I think that --

Unknown Speaker: (Inaudible)

Mr. Michael L. Boicourt: No, your honor.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Michael L. Boicourt: No, I am not giving up a standing point.

I was covering the standing point first because if the Court should agree with me on standing matter, I think it is necessary to consider what the Court of Appeals did in regard to reaching the merits.

I think that question does not make a good transition in the second issue which is pending before the Court today on this ground of certiorari.

To say the least, the record pending before the Eighth Circuit was a very limited one on which to read the merits, the respondents claim that this particular statute was unconstitutional.

The case had never reached the stage in which the three-judge Court, before the three-judge Court, in which there is the petitioner would have had a chance to defend on the merits, in fact, the petitioner never would have an opportunity to file an answer.

The District Court had only been called upon to rule upon the procedural matters raised in our motion to dismiss and it had never considered except perhaps reading conclusary allegations in the complaint.

The constitutional question concerned.

28 U.S.C. 1291 provides that the Court of Appeals shall have jurisdiction from all final decisions of the District Court of the United States.

Well, I respectfully submit that only final decision before the Eighth Circuit was one dismissing a complaint for lack of standing because the District Court certainly never considered anything other that the standing of decisions with respect to what they did to count two of the complaint.

When the Eighth Circuit determined that it could reach the merits and proceeded to do so, I believe that it began to exercise original jurisdiction which it had not been deferred upon it by Congress.

Furthermore, the complaint which raised the constitutional issues made every allegation necessary for a three-judge District Court to be impaneled and in fact the complaint specifically requested that the three-judge District Court be impaneled.

Congress has mandated that with regard to such complaints, that in the first instance they be considered by a three-judge District Court with direct appeal to the Supreme Court.

As matter, now stands in the first instance, the constitutionality of this statute has been considered only by the Eighth Circuit and certainly I can see nowhere in Congressional scheme of Federal Court jurisdiction where Eighth Circuit has jurisdiction to step in into the matter on an issue like standing on appeal the reach a decision on the merits.

The Sixth Circuit was called upon to do the same thing as the Eighth Circuit has done in this case in Roe versus Ferguson, a statute which is extremely similar to statute we are concerned here and again the three-judge District Court had not reached the question of the statute’s constitutionality.

Sixth Circuit considered and rejected an argument in that case that the constitutional issue involved, if that is constitutionality of the statute had been clearly settled or resolved.

I think the Sixth Circuit correctly remanded their case to three-judge District Court so that --

Unknown Speaker: Do you think that under limited grant, limited the question one and two, the issue of the correctness of the constitutional termination is before us?

Mr. Michael L. Boicourt: To this extent, your honor—

Unknown Speaker: What I am trying to get at, may we reach and pass upon whether the Court of Appeals correctly decided the constitutional question?

Mr. Michael L. Boicourt: No, your honor I do not think you can reach that, I think it becomes relevant because respondents are alleging that the constitutional issue is so clear, so clearly settled by the Federal Courts that there is no reason.

Unknown Speaker: We would disagree with the conclusion on the constitutional question.

You suggest we cannot express that disagreement, we would have to send it back to the three-judge Court to let it grapple over the constitutional question first?

Mr. Michael L. Boicourt: Yes, your honor, under the statutory scheme set up a Congress, I do think that is the case.

Justice William H. Rehnquist: Actually if you had sought to challenge the constitutional ruling of Court of Appeals you would have come here by appeal and not by certiorari, would you not have?

Mr. Michael L. Boicourt: As I understood the statute your honor, either one would have been acceptable, that although I could have raised the certiorari or appeal to constitutional questions but on appeal, I could not have raised questions who are not of a constitutional magnitude and other questions in regard to standing and their jurisdictional writ to merits that I was not sure about what the court would say in regard to the recent constitutional magnitude.

Justice William H. Rehnquist: So really the effect of the Eighth Circuits passing on the constitutional question here is that if they decided adversely to the state, the state can come here on appeal but if they decided in favor of the state, the original plaintiffs can come here only on certiorari?

Mr. Michael L. Boicourt: That is correct.

Justice Thurgood Marshall: (Inaudible) it did not issue declaratory judgment, it did not issue anything did it not?

Mr. Michael L. Boicourt: The Court of Appeals declared a statute to be unconstitutional --

Justice Thurgood Marshall: It said so in its opinion, it did not issue one, because the judgment is substantive?

Mr. Michael L. Boicourt: No your honor and it did not--

Justice Thurgood Marshall: Is anything different from the opinion filed?

Instead the declaratory judgment, no—no injunctions were filed?

Mr. Michael L. Boicourt: That is true your honor, but I do not think that we should allow the Court of Appeals merely by not saying in it is opinion we hereby enjoin the state to avoid the clear legal rule that they have only appellate jurisdiction because certainly the state is going to abide by a ruling in the constitutionality of the statutes.

Justice Thurgood Marshall: As I remember they said in their opinion that they expected you to abide by, did they not?

Mr. Michael L. Boicourt: They certainly did.

Justice Thurgood Marshall: That is right.

Mr. Michael L. Boicourt: And I do not-

Justice Thurgood Marshall: I do not quarrel with that but I mean it is so strange for them to take an action which if they were District Court they would have had the issue of injunction or declaratory judgment.

But sitting in the Court of Appeal, they do the same thing but they do not on the other hand--

Mr. Michael L. Boicourt: Exactly, your honor.

Justice Thurgood Marshall: I am confused.

Mr. Michael L. Boicourt: This Court has never decided and had not decided at the time, the Eighth Circuit rendered its opinion.

Whether a state must provide payments to indigents for non therapeutic abortions, they also provide pregnancy payments for those who have taken the term.

Now—excuse me, I see that my time is up.

Chief Justice Warren E. Burger: Mr. Susman.

Argument of Frank Susman

Mr. Frank Susman: Mr. Chief Justice may it please the Court.

This statute as it came out in oral argument during the appellate hearing it was clear what the state means for Medical reasons, therapeutic abortions, only those abortions which were necessary to preserve the life for health were to be reimbursed under the statute.

Chief Justice Warren E. Burger: This is jurisdictional question.

What authority did the Court of Appeals of Eighth Circuit have to deal with constitutional question here?

Mr. Frank Susman: We agree with the petitioner that the hornbook type of black letter law is clearly that issues not decided below, will not be decided on appeal and yet as we attempt to point out in our brief, there are exceptions which have been accepted by every Circuit to this general black letter rule.

Chief Justice Warren E. Burger: (Inaudible).

Can the Court of Appeals so decide the state statute on constitutional grounds?

Mr. Frank Susman: Well, the three-judge Federal statutes would appear to give the jurisdiction solely to the three-judge District Court panel.

We would—

Chief Justice Warren E. Burger: Do you say it would appear to?

Mr. Frank Susman: Right.

We would suggest that in the unusual situation that occurred here that once the matter is before the Court of Appeals and assuming for the moment that it is a clear matter, that judicial economy and the administration of justice, there is nothing to be gained by sending it back the very purpose of the three-judge panel so that one single judge does not have the authority in which to set aside the state statue has certainly not been obviated in this case because-

Chief Justice Warren E. Burger: Does the judge on the on the Court of Appeals panel?

Mr. Frank Susman: No, there certainly was not.

Chief Justice Warren E. Burger: So, it did not, it was not even a de facto of three-judge District Court, was it?

Mr. Frank Susman: No, it was not.

But we would only contend that the purpose of the three-judge panel not to give that type of power to one judge has not been ignored or avoided here because three Federal Judges did rule on the issue.

Justice Thurgood Marshall: But in most cases, can the other party give the right to answer?

Mr. Frank Susman: Yes, in this—

Justice Thurgood Marshall: In most cases?

Mr. Frank Susman: That is correct.

Justice Thurgood Marshall: Then, they did not have right answer here?

Mr. Frank Susman: There was no answer filed by petitioner in this case at any stage of the proceedings, although we cite in our briefs, several other cases in which Court of Appeals also rule on the merits in which the one side of the other, the defendants below at least had never filed an answer because filing an answer could in no way contribute it to the case because the issue was so clear.

They did --

Justice Thurgood Marshall: The Federal government, I guess we get to the point eventually where the court could just read statute and declare it unconstitutional?

Mr. Frank Susman: The Court of Appeals in this case did issue a judgment declaring the statute unconstitutional.

Justice Thurgood Marshall: Where is the judgment?

Mr. Frank Susman: In the last if this is maybe consider the judgment in the last para --

Justice Thurgood Marshall: The last paragraph of opinion?

Mr. Frank Susman: That is correct.

Justice Thurgood Marshall: It is not a judgment?

Mr. Frank Susman: No that is all that they said they did not—

Justice Thurgood Marshall: It is all they said?

And they put the state under that point but say we expect you to follow this?

Mr. Frank Susman: That is correct, they did not issue an injunction.

Justice Thurgood Marshall: It is kind of peculiar, is it not?

Mr. Frank Susman: It was difficult to find cases on either side of this issue on the second point.

There were --

Justice Thurgood Marshall: (Inaudible) that your client’s is suing on behalf of “their patients”?

Mr. Frank Susman: That is correct.

Justice Thurgood Marshall: And we do not know if they have got patients in that too?

Mr. Frank Susman: Well, they state in their verified complaint that they do have patients, they have not refused patients.

It was not something hypothetical.

They also filed affidavits to the exact same effect that the petitioner took time and got an order from the court giving him additional time which to file --

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: No, that is not all.

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: The respondents want to assert their patient's right to equal protection under the laws regard to that if the state--

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: That is not correct.

Well, that is all the only remedy of this particular statute would be funds in which to pay right.

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: Otherwise they would be denied access to any abortions.

Unknown Speaker: (Inaudible)

Mr. Frank Susman: Right.

The public hospitals in the city of St. Louis presently do not provide procedures.

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: Who -- the doctors?

Yes they have already submitted hundreds of applications which all had been denied.

Now one payment was made in the year-and-half between the time, the statute was enacted--

Justice Thurgood Marshall: (Inaudible)

Mr. Frank Susman: To assert their patients right, constitutional rights to free --

Justice Thurgood Marshall: To pay them?

Mr. Frank Susman: To pay them and they have free access to abortion rather than have to rely on the physician’s charity to perform it with out any compensation because there is no other source or avenue for them to obtain these procedures.

If the physicians would not do it for free there is no place else they can obtain it.

Unknown Speaker: Mr. Frank Susman, I do not read your count two of your complaint as alleging a right on behalf of the patients.

It very clearly alleges a right on behalf of physicians and surgeons, in the sense what it says --

Mr. Frank Susman: I apologize that I do not have a copy. Except you are reading, I do not have a copy that --

Justice Potter Stewart: It is in the appendix and then your theory as I understood the complaint was that there, A, they would not get and B their ability to perform these services for people on welfare is chilled because they do know whether those people would be able to get paid so it affects their practice rather than the patients -- that is what the complaint seems to say, your argument is quite different here though.

Mr. Frank Susman: Yes.

Justice Potter Stewart: I want to know what it is your theory.

Mr. Frank Susman: When standing became an issue we also asserted or attempted to assert in the appeal that they had the right to assert their patient's constitutional rights to abortion as part of their standing.

They have standing not only in their own rights but on behalf of their patients.\

Those --

Unknown Speaker: (Inaudible) constitutional right on behalf of the doctors?

Mr. Frank Susman: Yes.

Unknown Speaker: You do in your complaint?

Mr. Frank Susman: Yes.

Unknown Speaker: Would you like to articulate it?

Mr. Frank Susman: Certainly.

Unknown Speaker: The constitutional right of the doctors not of the patients?

Mr. Frank Susman: I think there it is a line of cases in which individuals whether physicians or otherwise have a right of liberty to pursue a lawful profession and to earn a living.

I think doctors have a particular right.

Well, of course part of it, but it is very hard to separate, that is one of standing arguments that the confidential relationship between the physician and a woman in regard to abortion procedure is basically inseparable and is very hard to distinguish and segregate out the respective rights of each because this it is a joint decision under the wording Roe and Doe.

The abortion cases, ignore for the moment all those cases which provide criminal penalties, all statute adopted subsequent to 1973, in every one of those cases even the ones that had no criminal penalties, doctors were held to have standing to assert their own rights and those of their patient.

In other Medicaid context other than abortion doctors and the providers of medical services, institutions, hospitals, nursing homes, have all been consistently held to have standing to assert the right to Medicaid payments on behalf of the people that they treated.

Petitioner cited not a single case, abortion or Medicaid nature in which physicians were not held to have standing to assert these type of payments rights on behalf of their patients.

Unknown Speaker: Speaking now about standing, I was wondering about constitutional rights on behalf of the doctors?

What constitutional right does a doctor have to claim entitlement to medical fee provided by the state to people who cannot afford to pay their own fees --

Mr. Frank Susman: He may have any constitutional right, I think he has other interest.

The Court of Appeals for example made specific holding that in two ways, 1, this type of statute which excluded payments for abortion -- number one it fringed upon his medical practice.

And number two, caused him economic hardship, and both of those factors, they considered to give him separate standing, each independently was enough to give him standing in the opinion of the Court of Appeals.

The financial detriment that he experienced, and also the fact that his right to practice medicine was being fringed upon.

Unknown Speaker: It could have Article 3 standing to stay in court, and I was addressing my inquiry primarily to what sort of relief the doctors were entitled to as a matter of constitutional right?

Mr. Frank Susman: Separate and apart from their patient, I am not sure that they have any right to relief on a constitutional basis.

Unknown Speaker: That was my inquiry.

Thank you.

Justice William H. Rehnquist: Mr. Frank Susman, in your complaint, you alleged that your clients are physicians residing and engaged in practice of obstetrics and gynecology and so forth.

Now, the state, I take it never had an opportunity to traverse or deny those allegations because of the fact that was it never had a chance to file in answer?

Mr. Frank Susman: Only in one way did they have an opportunity to deny them, because all of those allegations that you referred to in the complaint were repeated in affidavits filed by the respondents and the petitioners specifically requested an opportunity from the Court to file counter affidavits and was given leave to do so and never chose not to.

Justice William H. Rehnquist: As I read the District Court's memorandum of May 31st, I thought it would treat it as a motion to dismiss.

Are you suggesting there was in fact the motion for summary judgment?

Page 6, page 40 of the 10 appendix?

Mr. Frank Susman: Page 40, I am sorry?

Justice William H. Rehnquist: I am sure you know the record much better than I do, I was just reading the District Court’s memorandum of May 31st?

Mr. Frank Susman: There was a motion, as I recall a motion of summary judgment filed by the respondents.

Although I really do not recall the affidavits have been filed in opposition to the motion to dismiss as opposed to being in support of a motion for summary judgment.

They were --

Justice William H. Rehnquist: I can see how you could use affidavits to oppose a motion to dismiss where you are trying to bring in fact that you did not plead in your complaint.

But that is not the same thing as giving the defendant the chance to deny the material allegations which really go to standing here that you made in your original complaint?

Mr. Frank Susman: Your honor, I do not recall whether or not there was a motion for summary judgment filed this time.

From the look at the chronological list of countries, it would appear that there was not.

Justice William H. Rehnquist: So, it did go up on a motion to dismiss?

Mr. Frank Susman: That is correct.

As to standing we feel, again we indicated that petitioner has not cited a single case dealing either with abortion or Medicaid in which physicians were not held to have standing on behalf of their patient's rights.

They are numerous cases in which they were held as have such standing and many of these are in no way analogous to Doe versus Bolton because there are not in criminal context.

There are also some --

Unknown Speaker: Mr. Susman, your reliance on the patient's rights as distinguished with the reliance on the physician's economic rights is I do not find any allegation either in the complaint or in the affidavits in support that indicate that any welfare patients was ever denied an abortion by any of your clients.

Mr. Frank Susman: Your honor, I believe that statement does appear both in complaints and in the affidavits.

Unknown Speaker: And one and three would respect to services, I am not talking about the count two.

Mr. Frank Susman: Yes.

Unknown Speaker: You say that refusal to get paid deters the plaintiff from the practice of medicine in the manner he considers to be the most expertise.

But it did not say he refuses to --

Mr. Frank Susman: In Paragraph 9, both affidavits being identical in Paragraph 9 on page 32 of the appendix, the affidavit by respondent George J.L. Wulff Jr.

He states that he has provided an anticipate providing abortions in the future, that he has been refused and anticipate future refusals for payment.

Unknown Speaker: You said he has not been paid, how did that affect his patients?

As I understand that, he has been doing it for nothing?

Mr. Frank Susman: That is correct.

Unknown Speaker: But how that adversely affected his patients?

Mr. Frank Susman: It would not adversely affect those patients upon whom he had to date rendered services, except that he may well have a private contract right back against them for payment.

I admit that it would have greater effect upon the future patients.

Unknown Speaker: He may well have but he is not alleged that he has, he did not say so in his affidavit.

Mr. Frank Susman: That is correct.

Unknown Speaker: It seems to me that you are limited to whatever standing you have as a doctor who says I want to do a lot of work and perhaps I would not get pay for it which may or not be sufficient but I really do not see your claim on behalf of the patients, and I do not see that you have anywhere alleged that any patient, on welfare ever failed to get an abortion when needed.

Mr. Frank Susman: I do not believe there is.

I agree with you that there is not a specific allegation to that effect.

I think perhaps common sense would lead us to believe that the doctors will not continue to providing the services for free.

I think particularly in light of the fact, the public hospitals are not doing --.

Unknown Speaker: Can rely on common sense—

Mr. Frank Susman: I agree.

Unknown Speaker: (Inaudible)

Mr. Frank Susman: No, it is not.

Unknown Speaker: Can we rely on common sense about doctors in general or do you have the burden of saying this doctor in particular is able to assert this particularly.

Mr. Frank Susman: I think the respondent have that burden.

I think the doctors, the physicians have standing not only on their own rights as we previously indicated but also on behalf of their patients both the right to practice medicine which several lower Courts have held, both the economic interest which we have already discussed.

We also believed that they have the logical nexus which is necessary.

We think the general rule as far as deciding a question on appeal which has not been decided below is basically that an appellate Court does not lack of power to do what plainly ought to be done and that the appellate Courts decision to consider the merits of a case upon appeal, although not decided below is matter of judicial discretion and is not really a limit on jurisdictional power.

Basically, that was the whole in Mercury Motor Express.

In the recent decision out of the seven Circuit authored by Justice Stevens in Fitzgerald versus Porter Memorial Hospital, in that case a single judge dismissed for lack of standing and yet the Court of Appeals went on.

In that case there was even a dissent and so the issue was not even as clear as perhaps, it should be regarded in this case.

But the Court of Appeals went on to rule in constitutional merits.

Unknown Speaker: Was that the three-judge District Court said?

Mr. Frank Susman: No, was not below.

The factors to be considered as found but the various Circuits--

Unknown Speaker: (Inaudible) that the two questions as to what certiorari was granted?

What happens to the judgment on the merits in the Court of Appeals?

Mr. Frank Susman: I would think that if both of the issues are affirmed as far as the merits, this particular case is over.

It may not be binding on other future litigation in other states as far as this particular litigation and as it applies to Missouri, the issue would be resolved.

It would be a final judgment.

Unknown Speaker: That is because we limited the grant?

Mr. Frank Susman: That is correct.

Chief Justice Warren E. Burger: (Inaudible) standing the three-judge District Court has never exercised its authority to declare a state statute unconstitutional?

Mr. Frank Susman: That is correct but I am assuming Justice Brennan remarks that both issues were to be affirmed right.

The factors of the various Circuits have looked at, we suggest as to when an appellate Court should rule on the merits when the issue has not been decided below are all present here.

They include some of the following; the summary judgment nature of the proceedings -- petitioners never chose to contest and ignoring for the moment of whether or not he had the opportunity to file an answer.

He never chose to contest that oral argument in the Court of Appeal in his brief or any of the factual contexts that --

Justice Thurgood Marshall: …dismiss --the motion to dismiss was granted?

Mr. Frank Susman: That is correct you honor.

Justice Thurgood Marshall: And that was the only motion that was granted?

Mr. Frank Susman: That is by the District Court.

That is correct.

Justice Thurgood Marshall: Relying that all that was before the Court of Appeals.

Mr. Frank Susman: I think, the answer to that was not all it was the before Court of Appeals is because respondents moved their own initiative to attempt in every way possible to bring the merits before the Court of Appeals both in their brief and then oral argument which they did in which the Court of Appeals either rightly or wrongly of course is for the Court to decide but they did accept.

Certainly counsel for petitioner and petitioner were forewarned that the merits were going to be, there was going to be every effort to contest them and to argue on appeal some 80% or 90% of the appellant's brief constituted the merits--

Justice Thurgood Marshall: What was before the Court was granting on the motion to dismiss?

Mr. Frank Susman: That was the only ruling by the District Court.

Justice Thurgood Marshall: That was all before the Court of Appeals.

Mr. Frank Susman: We would argue that was not all that was before the Court of Appeals.

I am not in position to say whether the Court of Appeals acted correctly or not but certainly the respondents made every effort to bring the merits before them, and for the various reasons and we think the reasons that other Circuits have done exactly the same thing in like cases, chose in this particular case to exercise their discretion which we believe they had and to rule on the merits.

Chief Justice Warren E. Burger: (Inaudible) burden the counsel of sustaining what they are trying to sustain, what the Court of Appeals did, that is what the case is all about.

Mr. Frank Susman: Certainly.

Unknown Speaker: I do not think you mean what you say that other Circuit have done the same thing in like cases.

There are no any other precedents for the Court of Appeals deciding a constitutional issue which should normally be presented in the first instance with the three-judge District Court, is it not?

Mr. Frank Susman: No there are not, we could not find any cases on either side on those specific facts as you set them forth?

Unknown Speaker: I thought there was a case opposing your position in the Court of Appeals and in the Eighth Circuit --

Mr. Frank Susman: Sixth Circuit was asked to do basically the same thing.

Unknown Speaker: -- did they not?

Mr. Frank Susman: They did, they sent it back to the panel for determination of the constitutional merits.

But we would suggest that whether or not the Court of Appeal decides to send it back or to retain it and decide it on their own initiative is matter of discretion to be exercised and the fact that the Sixth Circuit and Eighth Circuit reached opposite conclusions as to the exercise of that discretion, in no manner speaks that there was an abusive discretion by either Circuit.

And that the test to be utilized here is whether or not they abused their discretion in ruling upon the merits.

Unknown Speaker: Do you think the Court of Appeals was exercising appellate jurisdiction or original jurisdiction?

Mr. Frank Susman: I am not quite sure, I have not seen all the commentaries and text and other cases in which issues are decided which were not decided below.

I have never seen a discussion as to which classification this might fall in.

Justice Potter Stewart: But in any event, whether it was exercising original jurisdiction or appellate jurisdiction, it was doing so quite inconsistently with the three-judge Court legislation which gives jurisdiction to a three-judge Federal Court to enjoin a state statute on a constitutional basis.

It gives appellate jurisdiction to this Court to review that constitutional determination and the one Court to which it does not give either original or appellate jurisdiction is the Court of Appeals, is not that correct?

Mr. Frank Susman: I think clearly, it is inconsistent with the letter of the three-judge panel law.

I do not feel that it is inconsistent with the intent because this Court has repeatedly stated the purpose of that is to remove from a single judge the power to set aside state legislation.

And here three judges have the opportunity to rule.

Justice Potter Stewart: What is the citation of Sixth Circuit case?

Mr. Frank Susman: Just a moment, Your Honor, Sixth Circuit is Roe versus Ferguson 515 fed Second 279, Sixth Circuit-

Justice Potter Stewart: 515, 279?

Mr. Frank Susman: That is correct.

Justice Potter Stewart: Thank you.

Mr. Frank Susman: 1970.

Unknown Speaker: In the Eighth Circuits’ opinion, they state this “We are urged by appellants, that would be your side of the case.

To reach the merits of this case rather than remand the three-judge Court, I take it therefore, you were not surprised as counsel, when they did not reach the merits?

Do you think it would be important to do so?

Mr. Frank Susman: We certainly urged upon them to do it.

I cannot say that we were not surprised.

We were presently surprised.

Unknown Speaker: Was there our position at that time, that the issue had not been passed upon by the District Court?

Mr. Frank Susman: Was there opposition to?

Unknown Speaker: Yes, when you were arguing before the Court of Appeals.

Mr. Frank Susman: I cannot really recall on oral whether or not and counsel for petitioner have to speak for himself.

But again, we would take the position that because as Justice Rehnquist pointed out, our brief was filed first and dealt almost exclusively with the merits.

Our oral argument dealt almost exclusively with the merits, that in effect petitioner had his chance to stand up and take his wings, he had his chance at that -- he chose-

Chief Justice Warren E. Burger: The District Court statute -- had a right to think that you had no business to brief that issue and thought that the three Judges on Court of Appeals would probably be aware of that too?

Mr. Frank Susman: That is certainly a possibility, your honor.

Justice William H. Rehnquist: If this Court of Appeals for the Eighth Circuit come up the other way, it seems to me, you very likely would have had a pretty arguable complaint, at that point, all you would had here was a right to petition for certiorari whereas the three-judge District Court had decided a case, you would have had a right of direct appeal on a decision here on merits?

Mr. Frank Susman: That is correct.

Justice William H. Rehnquist: So it does twist around the statutory system a little bit to have the Court of Appeals pass on it?

Mr. Frank Susman: The only reasons we would urge this Court to affirm with the Court of Appeals, and the Eighth Circuit did is that if one examines the different reasons of justification, and again, as Justice Stevens pointed out, no case exactly on constitutional issues has been done but in other areas where they have ruled on the issue clearly not decided below.

In fact, the only issue constitutionally perhaps is Fitzgerald case itself, but if you look at the justifications, the reasons they say why we are going to ahead and rule on the merits, but rule on an issue not decided below and there are many summary judgment nature of the proceedings, the clarity to principle, the fact that it affects a lot of people and all the recognized exceptions -- every one of those we would argue applies to this case.Unk

Justice William H. Rehnquist: What if in this case the resident judge in Saint Louis, the convening judge had refused to convene a three-judge District Court saying the issue is so insubstantial, I would not even hear it.

And you would then appeal to the Court of Appeals on the Goosby against Osser claim that it was substantial, it should not have been three-judge Court.

Should the Court of Appeals hearing a Goosby against Osser contention say, well not only this is substantial but we know the answer why it sent it back to the District Court, we will just tell him answer right now, it is not constitution?

Mr. Frank Susman: Certainly for consistency, if not for any other reason, I would agree that they would have that authority in a given case which fit the facts and the circumstances of the type of case that ought to be decided on that basis.

Unknown Speaker: (Inaudible), is it not what Mr. Justice Rehnquist is going to imply-- is that implied in this paragraph?

The statute in question is obviously unconstitutional and it is our view that the case might well have been decided by one Federal Judge accordingly we choose to make final determination.

Mr. Frank Susman: That is exactly true because in fact—

Unknown Speaker: -- either single judge and the three Judges?

Mr. Frank Susman: Right.

Unknown Speaker: -- ever passed on constitutional question?

Mr. Frank Susman: Well, that is not exactly correct.

Prior to this decision which came down in December 31 of 1974, some 15 other Federal Judges had passed on the identical issue of whether excluding abortion from Medicaid payments, denial of Equal Protection.

Since the decision of December 31, 1974 and this of course is only in retrospect, an additional 11 Judges have so held.

And this is also --

Unknown Speaker: (Inaudible)

Mr. Frank Susman: Yes, no not all outside some of those.

Unknown Speaker: Before this?

Mr. Frank Susman: Some of 15 where within the Eighth Circuit, some.

Unknown Speaker: -- within Missouri and Eighth Circuit?

Mr. Frank Susman: No, none.

Unknown Speaker: None of them.

It might well have happened that the panel you caught on the CAA, might not have included a Missouri Judge, it happen that you did catch one at the Court of Circuit Judge, but there are no district judge.

Mr. Frank Susman: In addition to those 15 Judges who had ruled on the exact Equal Protection argument of the Medicaid exclusion, there was also a host of other Federal Judges who would rule on the exact Equal Protection argument in the public hospital context and we would submit that there can be distinction between the two because the same argument is that if a public hospital or at the state through Medicaid provides maternity services and the right of Equal Protection means they must also provide abortion services.

Unknown Speaker: I am going back to my other question, I take it then that the Eighth Circuit did not do this in entirely sue sponte?

Mr. Frank Susman: No, they were urged by appellants, respondents to do so quite clearly.

Unknown Speaker: As to restate your oral argument a little it I may, your point really is that the defense is so frivolous, there really was not a three-judge Court cases at all.

That it could have been appropriately been decided by a single judge in the District Court because defense is frivolous, and therefore, there is no substantial--

Mr. Frank Susman: While I agree with that argument, I do not think that that statement is synonymous with situations under which a Court of Appeals can rule upon an issue not decided below.

I think this is case where they could not rule.

But those to—

Unknown Speaker: But the way you get out of the three-judge Court problem is by saying this is the kind of issue that a single judge could have decided and therefore you rely on this analogy of other court.

Mr. Frank Susman: That and I think there are two other ways to get out.

First being the fact that the intent and the meaning and purpose of the three Judge Court has not been obviated here because three Federal Judges did in fact --.

Unknown Speaker: Oh that is a different argument.

The first argument, Bailey against Patterson situation?

That is right, that is Bailey against Patterson situation.

Mr. Frank Susman: The second possible way out would be that in light of Staple that the appellants, respondents did not appeal the denial of injunctive relief and therefore have waived the request for injunctive relief and therefore even if necessary remand, it may well now go back in absence of any request for injunctive relief to a single district judge.

So, I offer you three possibilities, I think I will stop.

Thank your honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case has submitted.