State of CALIFORNIA, ex rel. Bill LOCKYER, in his official capacity as Attorney General of the State of California; Jack O'Connell, in his official capacity as the State Superintendent of Public Instruction, Plaintiffs-Appellees,
Alliance for Catholic Health Care, Appellant,
v.
UNITED STATES of America; U.S. Department of Labor; Elaine Chao, in her official capacity as the Secretary of Labor; Department of Health and Human Services; Tommy G. Thompson, in his official capacity as the Secretary of Health and Human Services; United States Department of Education; Margaret Spellings, in her official capacity as the Secretary of Education, Defendants-Appellees,
v.
American Association of Pro-Life Obstetricians and Gynecologists; Christian Medical Association; Fellowship of Christian Physician Assistants, Third-party-defendants.
State of California, ex rel. Bill Lockyer, in his official capacity as Attorney General of the State of California; Jack O'Connell, in his official capacity as the State Superintendent of Public Instruction, Plaintiffs-Appellees,
v.
United States of America; U.S. Department of Labor; Elaine Chao, in her official capacity as the Secretary of Labor; Department of Health and Human Services; Tommy G. Thompson, in his official capacity as the Secretary of Health and Human Services;
United States Department of Education; Margaret Spellings, in her official capacity as the Secretary of Education, Defendants-Appellees,
v.
American Association of Pro-Life Obstetricians and Gynecologists; Christian Medical Association; Fellowship of Christian Physician Assistants, Third-party-defendants-Appellants.
No. 05-17292.
No. 05-17312.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 19, 2006.
Filed June 9, 2006.
James F. Sweeney, Sweeney & Greene LLP, Sacramento, CA, for appellant Alliance of Catholic Health Care.
Steven H. Aden, M. Casey Mattox, Center for Law and Religious Freedom of the Christian Legal Society, Springfield, VA, for appellants Christian Medical Association et al.
Antonette B. Cordero, Deputy Attorney General, Los Angeles, CA, for plaintiffs-appellees.
August E. Flentje, Assistant United States Attorney, Washington, DC, for defendants-appellees.
Appeal from the United States District Court for the Northern District of California; Jeffrey S. White, District Judge, Presiding. D.C. No. CV-05-00328-JSW.
Before B. FLETCHER, KOZINSKI and FISHER, Circuit Judges.
KOZINSKI, Circuit Judge.
We consider whether health care providers are entitled to intervene in a case challenging the constitutionality of a federal appropriations rider enacted to protect their interests.
Facts
California, like a number of other states, has a statute that compels emergency health care providers to deliver medical services "for any condition in which the person [seeking such services] is in danger of loss of life, or serious injury or illness." Cal. Health & Safety Code § 1317(a). The statute makes no exception for abortion services and can therefore be understood to mandate such services when needed to preserve the life or health of the patient.
In 2004, Congress attached a rider to an appropriations bill, in an effort to dissuade states from forcing health care providers to offer abortion services. See Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, 118 Stat. 2809 (2005). The rider, dubbed the Weldon Amendment after its sponsor, Congressman (and Doctor) Dave Weldon, prevents federal, state and local governments from receiving certain federal funds if they discriminate against health care providers that refuse to provide, pay for, provide coverage of, or refer for abortions.1 See id. Div. F, § 508(d),
In light of the Weldon Amendment, enforcement of California Health and Safety Code section 1317 would arguably make California ineligible for certain federal funds. This caused California to bring suit in federal court seeking a declaration that the Amendment is unconstitutional on the grounds that it exceeds Congress's spending power and authority and violates the Fifth and Tenth Amendments. Alternatively, the state sought a declaration that enforcement of section 1317 would not disqualify it from receiving federal funds otherwise available under the Consolidated Appropriations Act. While the Weldon Amendment does not, technically, compel California to refrain from enforcing section 1317 against doctors who refuse to perform abortions, California argues that, as a practical matter, it will be precluded from so enforcing its law for fear of losing billions in federal aid. In support of this theory, the state presented an affidavit from its Attorney General stating that, so long as the Weldon Amendment is in place, he "will have no choice but to refrain from exercising [his] authority to enforce California's police powers."
Among the arguments raised by the United States in this litigation is that California lacks standing because it faces no imminent threat that the Weldon Amendment will be enforced against it, in part because it has not shown any plans to enforce section 1317. In response, the state argued as follows in its brief below:
[F]ollowing the passage of the Weldon Amendment, the California Attorney General's Office has received complaints about two women allegedly being denied emergency abortion-related medical services at a California Hospital. These complaints have been referred to the California Department of Health Services, and this state agency will initiate an investigation into the complaints pursuant to its statutory authority under the California Health and Safety Code.
That these complaints have been received by the California Attorney General's Office document [sic] that California's need to enforce Health and Safety Code section 1317 is not "unforeseeable," as defendants would have this Court believe. Instead, the undisputed evidence in this case shows that state officials are already receiving information about alleged denials of emergency abortion-related medical services in California. . . .
Plaintiffs' Combined Opposition to Cross-Motion for Summary Judgment and Reply, at 6 (emphasis added) (internal citations omitted).
Two separate groups—the appellants here—sought to intervene both as of right, see Fed.R.Civ.P. 24(a), and with the district court's permission, see id. 24(b). The first group, the Alliance of Catholic Health Care, is a non-profit health care association representing Catholic health care providers in California. Alliance members object to providing any abortion service, even when essential to preserving the health or life of the mother. The other entity, known as the Medical Groups, consists of several pro-life organizations whose members will provide abortion services only in a very small class of emergencies. The Medical Groups contend that their members risk being prosecuted under section 1317 because they take a far narrower view than does California of what constitutes a medical emergency justifying an abortion.
The existing parties opposed intervention and the district court ruled in their favor. Finding that the proposed intervenors did not have a significant protectable interest in the case, and that disposition of the case would not impede their ability to protect their interests, it denied intervention both as of right and as a discretionary matter. This appeal followed.
Analysis
On appeal, appellants challenge only the denial of intervention as of right under Rule 24(a). Intervention as of right is governed by Federal Rule of Civil Procedure 24(a)(2). We construe Rule 24(a) liberally in favor of potential intervenors. Sw. Ctr. for Biological Diversity v. Berg,
(1) the motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action.
Sierra Club v. EPA,
1. "An applicant has a `significant protectable interest' in an action if (1) it asserts an interest that is protected under some law, and (2) there is a `relationship' between its legally protected interest and the plaintiff's claims." Donnelly v. Glickman,
The proposed intervenors' interest thus is neither "undifferentiated" nor "generalized." See United States v. Alisal Water Corp.,
California and the United States point out that the Weldon Amendment does not give the proposed intervenors any enforceable rights, nor does it seek to protect any of their existing legal rights. However, our intervention caselaw has not turned on such technical distinctions. Rather, we have taken the view that a party has a sufficient interest for intervention purposes if it will suffer a practical impairment of its interests as a result of the pending litigation.
In County of Fresno v. Andrus,
The proposed intervenors' interest in the litigation here is at least as substantial as that of the farmers in County of Fresno. Congress passed the Weldon Amendment precisely to keep doctors who have moral qualms about performing abortions from being put to the hard choice of acting in conformity with their beliefs, or risking imprisonment or loss of professional livelihood. And the Amendment appears to have had its intended effect: The state, in its complaint, contends that the Weldon Amendment "is so broad and severe as to leave the Plaintiffs with no choice but to accede to Congress's dictates." That Congress chose to use its spending power as a lever, rather than passing legislation granting affirmative rights to those represented by the proposed intervenors, is of no consequence. The Weldon Amendment effectively shields the proposed intervenors and their members from the difficult moral choice to which enforcement of section 1317 could otherwise subject them. The fact that California brought this lawsuit seeking to invalidate the Amendment, or restrict its sweep, is proof in itself of the efficacy of this congressional enactment and its significance to the proposed intervenors.
The interest of the proposed intervenors here is far more direct than that of the proposed intervenors in Donnelly. In that case, which had been brought by female Forest Service employees, male Forest Service employees sought to intervene to assert their own claims of gender-based discrimination. See
2. Having found that appellants have a significant protectable interest, we have little difficulty concluding that the disposition of this case may, as a practical matter, affect it. See Berg,
Even if this lawsuit would affect the proposed intervenors' interests, their interests might not be impaired if they have "other means" to protect them. Alisal,
United States v. City of Los Angeles,
California's reliance on this passing comment in City of Los Angeles is misplaced. The comment does not amount to a holding because nothing in the case turned on it. And in any event, the comment is entirely unhelpful to the opponents of intervention here. The community groups in City of Los Angeles, after all, were not precluded by the pending litigation from bringing their own lawsuits to enjoin or seek damages for unconstitutional police practices. By contrast, the proposed intervenors here have no such opportunity. Because the Weldon Amendment is a spending measure and thus gives the proposed intervenors no enforceable rights, they would be unable to bring a separate suit where they could argue for a broad reading of the Amendment. Cf. Massachusetts (Frothingham) v. Mellon,
While City of Los Angeles does not support the view that intervention is inappropriate here, another aspect of the case actually helps the proposed intervenors. In addition to the community groups there, the designated bargaining unit for the police officers also sought to intervene in the litigation.
3. Finally, we turn to whether the United States will adequately represent the proposed intervenors' interests in this action. We have observed that "[w]hen an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation arises." Arakaki v. Cayetano,
Here, however, the United States and the proposed intervenors have distinctly different, and likely conflicting, interests. "Often, defending Acts of Congress leads the Solicitor General to lean heavily on the Ashwander principle of construing a statute so as to avoid constitutional doubt." See id. at 1079-80 (citing Ashwander v. TVA,
Of course, just because the government theoretically may offer a limiting construction of a statute that is narrower than that of a party proposing intervention does not mean that the party has overcome the presumption of adequacy of representation. In order to make a "very compelling showing" of the government's inadequacy, the proposed intervenor must demonstrate a likelihood that the government will abandon or concede a potentially meritorious reading of the statute.
Here, there is a limiting construction that the government could advocate that might assuage many of the constitutional doubts clouding the Weldon Amendment: The Weldon Amendment does not reach statutes like California Health and Safety Code section 1317 that do not facially discriminate against health care providers who refuse to provide abortion services. Section 1317, after all, speaks in terms of health care providers that fail to provide any emergency service; it does not single out abortion for special treatment.
That the government will offer such a limiting construction of the Amendment is not just a theoretical possibility; it has already done so. In its motion for summary judgment, the United States suggested that "because § 1317 applies to medical emergencies involving any life-threatening or other serious condition, and not simply abortions, it does not on its face constitute discrimination within the meaning of the Weldon Amendment." And it has indicated that it may adopt the position that "enforcement of a facially neutral state statute such as § 1317 (which applies to all emergency medical services, not simply abortions) [does not] constitute discrimination under the Weldon Amendment." By contrast, the proposed intervenors take the position that the Weldon Amendment must be read broadly to cut off federal funding to any state that uses facially neutral laws—such as section 1317—to force health care providers to perform abortions when they are unwilling to do so.2
These are far more than differences in litigation strategy between the United States and the proposed intervenors. See City of Los Angeles,
We therefore conclude that the proposed intervenors in this case, like those in Forest Conservation Council v. United States Forest Service,
* * *
The proposed intervenors have a significant protectable interest at stake in this case that could be impaired by the outcome. They have no other means to protect this interest, and no current party adequately represents it. We therefore reverse and remand with instructions that both proposed intervenors be made parties to the litigation aligned with the defendant. The district court should take all reasonable steps to put the new parties on an equal footing with the original parties. Because the district court will soon hear arguments on the cross-motions for summary judgment, time is of the essence; the clerk is instructed to issue the mandate forthwith.
REVERSED AND REMANDED.
Notes:
Notes
The portion of the Weldon Amendment at issue in this case reads:
(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(2) In this subsection, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.
Id. § 508(d),
As noted, the two proposed intervenors have somewhat different interests, in that Alliance members willnever provide abortion services, whereas Medical Groups members will do so in certain limited circumstances. This difference is of no moment here because both groups suggest an interpretation of the Amendment that is far broader than that advocated by the United States.