Appellee physicians, who provide abortion services in Illinois,
filed a class action in Federal District Court challenging the
constitutionality of the Illinois Abortion Law of 1975, as amended,
and seeking declaratory and injunctive relief. Appellant
pediatrician (hereafter appellant) filed a motion to intervene as a
party defendant based on his conscientious objection to abortions
and on his status as a pediatrician and as a parent of a minor
daughter. The District Court granted the motion without indicating
whether the intervention was permissible or as of right.
Ultimately, the District Court permanently enjoined the enforcement
of certain provisions of the law that impose criminal liability
upon physicians for violation of the prescribed standards of care
for performing abortions and the requirements for furnishing a
patient with particular abortion-related information. The Court of
Appeals affirmed, and also permanently enjoined the enforcement of
another related provision. The State did not appeal to this Court,
but filed a "letter of interest" under this Court's Rule 10.4,
stating that its interest was identical to that advanced by it in
the lower courts, and essentially coterminous with appellant's
position.
Held: Because appellant lacks any judicially cognizable
interest in the Illinois Abortion Law, his appeal is dismissed for
want of jurisdiction. Pp.
476 U. S.
61-71.
(a) The presence of a disagreement is insufficient, by itself,
to meet Art. III's "case" or "controversy" requirement. The party
seeking judicial resolution of a dispute must also show that he
personally suffered some actual or threatened injury as a result of
the other party's allegedly illegal conduct. Pp.
476 U. S.
61-62.
(b) Illinois' "letter of interest" is insufficient to bring the
State into the suit as an appellant with standing to defend the
statute's constitutionality in this Court. While the State, as a
party below, remains a party under Rule 10.4, that status does not
equate with the status of appellant. The State's failure to invoke
this Court's jurisdiction leaves the Court without a "case" or
"controversy" between appellee physicians and the State. Pp.
476 U. S.
62-64.
Page 476 U. S. 55
(c) Appellant's interests in enforcement of the statute do not
permit him to defend it. Only the State has a judicially cognizable
interest in defending its criminal statutes. Pp.
476 U. S.
64-65.
(d) Appellant's claims that his professional interests confer
standing have no merit. As a pediatrician. he has an interest, but
no direct stake, in the abortion process. This abstract concern
does not substitute for the concrete injury required by Art. III.
Similarly, appellant's claim of conscientious objection to abortion
does not provide a judicially cognizable interest. Nor can he
maintain the appeal in his capacity as a parent, absent any showing
that his daughter is currently a minor or otherwise incapable of
asserting her own rights. And he cannot assert any constitutional
right of the unborn fetus, since only the State may invoke
regulatory measures to protect that interest or the power of the
courts when those measures are subject to challenge. Pp.
476 U. S.
65-67.
(e) Neither appellant's status as an intervenor below, whether
permissive or as of right, nor the fact that the District Court
assessed attorney's fees against him and the State, confers
standing to keep the case alive in the absence of the State on this
appeal. An intervenor's right to continue a suit in the absence of
the party on whose side intervention was permitted is contingent
upon the intervenor's showing that he satisfies Art. III's
requirements, and appellant has not made such a showing. As to the
fee award, Art. III standing requires an injury with a nexus to the
substantive character of the statute at issue, and the fee award
bears no relation to the Illinois Abortion Law. Pp.
476 U. S.
68-71.
Appeal dismissed. Reported below: 749 F.2d 452.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined, and in Part I
of which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined.
O'CONNOR, J., filed an opinion concurring in part and concurring in
the judgment, in which BURGER, C.J., and REHNQUIST, J., joined,
post, p.
476 U. S. 71.
WHITE, J., concurred in the judgment.
Page 476 U. S. 56
JUSTICE BLACKMUN delivered the opinion of the Court.
Appellant Eugene F. Diamond is a pediatrician engaged in private
practice in Illinois. He seeks to defend before this Court the
constitutionality of four sections of the Illinois Abortion Law of
1975, as amended. [
Footnote 1]
These sections impose criminal liability for the performance of an
abortion under certain circumstances, and, under other
circumstances, require that the woman be provided with particular
abortion-related information. The State of Illinois has chosen to
absent itself from this appeal, despite the fact that its statute
is at stake. Because a private party whose own conduct is neither
implicated nor threatened by a criminal statute has no judicially
cognizable interest in the statute's defense, we dismiss the appeal
for want of jurisdiction.
Page 476 U. S. 57
I
On October 30, 1979, over gubernatorial veto, the Illinois
Legislature amended the State's 1975 Abortion Law to provide for
increased regulation. 1979 Ill.Laws, Pub. Act 81-1078. That very
day appellees, four physicians who provide obstetric, gynecologic,
and abortion services in Illinois filed a class action in the
United States District Court for the Northern District of Illinois.
They alleged a deprivation of rights in violation of 42 U.S.C. §
1983 by the Illinois officials charged with enforcing the Abortion
Law. [
Footnote 2] Appellees
sought declaratory and injunctive relief. [
Footnote 3]
The next day, the District Court certified the plaintiff class
and temporarily restrained enforcement of the entire statute. On
November 8, appellant Diamond filed a motion to intervene as a
party defendant, either permissively or as of right, and to be
appointed guardian
ad litem for fetuses who survive
abortion. [
Footnote 4] The
motion for intervention professed to be
Page 476 U. S. 58
based on Doctor Diamond's conscientious objection to abortions,
and on his status as a pediatrician and as a parent of an
unemancipated minor daughter. [
Footnote 5]
Over appellees' objection, the District Court granted Diamond's
motion to intervene. [
Footnote
6] The District Court did not indicate whether the intervention
was permissive or as of right, and it did not describe how
Diamond's interests in the litigation satisfied the requirements of
Federal Rule of Civil Procedure 24 for intervenor status. The court
denied the guardianship motion.
On November 16, the District Court entered a preliminary
injunction against a number of sections of the Abortion Law,
including §§ 6(1) and 6(4). [
Footnote 7] These sections prescribe the
Page 476 U. S. 59
standard of care that must be exercised by a physician in
performing an abortion of a viable fetus, [
Footnote 8] and of a possibly viable fetus. [
Footnote 9] A violator of § 6(1) is
subject to a term of imprisonment of between three and seven years
and a fine not exceeding $10,000. Ill.Rev.Stat., ch. 38, ��
1005-8-1(5)
Page 476 U. S. 60
and 1005-9-1(1) (1983). A violator of § 6(4) is subject to a
term of imprisonment of between two and five years and a fine not
exceeding $10,000. Ill.Rev.Stat., ch. 38, �� 1005-8-1(6) and
1005-9-1(1) (1983).
The plaintiffs appealed the denial of the preliminary injunction
as to § 2(10), which defines the term "abortifacient," [
Footnote 10] and as to § 11(d),
which requires a physician who prescribes an abortifacient to tell
the patient what it is. [
Footnote 11] A violator of § 11(d) is subject to a term
of imprisonment of not more than 30 days, and a fine not exceeding
$500. Ill.Rev.Stat., ch. 38, �� 1005-8-3(3) and 1006-9-1(3) (1983).
No cross-appeal was taken. The Court of Appeals for the Seventh
Circuit instructed the District Court to enter a preliminary
injunction as to §§ 2(10) and 11(d), because these statutory
provisions forced physicians "to act as the mouthpiece for the
State's theory of life."
Charles v. Carey, 627 F.2d 772,
789 (1980). [
Footnote
12]
Page 476 U. S. 61
On remand, the District Court permanently enjoined, among
others, §§ 6(4), 2(10), and 11(d).
Charles v.
Carey, 579 F.
Supp. 464 (1983). [
Footnote
13] On appeal and cross-appeal, the Court of Appeals affirmed
the entry of the permanent injunction as to the three sections, and
also permanently enjoined the enforcement of § 6(1). 749 F.2d 452
(1984). The State did not appeal the grant of the permanent
injunction. Diamond, however, filed a notice of appeal to this
Court and a jurisdictional statement. As we have indicated,
see n 4,
supra, Doctor Diamond is the sole appellant here. We noted
probable jurisdiction. 471 U.S. 1115 (1985).
The State, through the office of its Attorney General,
subsequently filed with this Court a "letter of interest," invoking
our Rule 10.4, which provides: "All parties to the proceeding in
the court from whose judgment the appeal is being taken shall be
deemed parties in this Court. . . ." In that letter Illinois
stated:
"Although not an appellant, the Office of the Attorney General .
. . is a party in the United States Supreme Court and is designated
an appellee. The Illinois Attorney General's interest in this
proceeding is identical to that advanced by it in the lower courts
and is essentially coterminous with the position on the issues set
forth by the appellants."
Letter dated July 15, 1985, to the Clerk of the Court from the
Director of Advocacy, Office of the Attorney General of Illinois.
See App. to Reply Brief for Appellants A-1. Illinois'
absence as an appellant requires that we examine our jurisdiction
to entertain this appeal.
II
Article III of the Constitution limits the power of federal
courts to deciding "cases" and "controversies." This
requirement
Page 476 U. S. 62
ensures the presence of the
"concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions."
Baker v. Carr, 369 U. S. 186,
369 U. S. 204
(1962). The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient by itself to meet Art. III's
requirements. This Court consistently has required, in addition,
that the party seeking judicial resolution of a dispute "show that
he personally has suffered some actual or threatened injury as a
result of the putatively illegal conduct" of the other party.
Gladstone, Realtors v. Village of Bellwood, 441 U. S.
91,
441 U. S. 99
(1979);
see also Warth v. Seldin, 422 U.
S. 490,
422 U. S. 501
(1975).
The nature of the injury is central to the Art. III inquiry,
because standing also reflects a due regard for the autonomy of
those most likely to be affected by a judicial decision. "The
exercise of judicial power . . . can so profoundly affect the
lives, liberty, and property of those to whom it extends,"
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.
S. 464,
454 U. S. 473
(1982), that the decision to seek review must be placed "in the
hands of those who have a direct stake in the outcome."
Sierra
Club v. Morton, 405 U. S. 727,
405 U. S. 740
(1972). It is not to be placed in the hands of "concerned
bystanders," who will use it simply as a "vehicle for the
vindication of value interests."
United States v. SCRAP,
412 U. S. 669,
412 U. S. 687
(1973).
III
Had the State of Illinois invoked this Court's appellate
jurisdiction under 28 U.S.C. § 1254(2) and sought review of the
Court of Appeals' decision, the "case" or "controversy" requirement
would have been met, for a State has standing to defend the
constitutionality of its statute. Diamond argues that Illinois'
"letter of interest" demonstrates the State's continued concern
with the enforcement of its Abortion Law, and renders the State the
functional equivalent
Page 476 U. S. 63
of an appellant. Accordingly, Diamond asserts, there is no
jurisdictional problem in the case. This claim must be
rejected.
It is true that, as a party below, the State remains a party
here under our Rule 10.4. [
Footnote 14] But status as a "party" does not equate with
status as an appellant. To appear before the Court as an appellant,
a party must file a notice of appeal, the statutory prerequisite to
invoking this Court's jurisdiction.
See 28 U.S.C. §
2101(c). [
Footnote 15]
Illinois' mere expression of interest is insufficient to bring the
State into the suit as an appellant. By not appealing the judgment
below, the State indicated its acceptance of that decision, and its
lack of interest in defending its own statute. [
Footnote 16] The State's general interest
may be adverse to the interests of appellees, but its failure
to
Page 476 U. S. 64
invoke our jurisdiction leaves the Court without a "case" or
"controversy" between appellees and the State of Illinois.
Cf.
Princeton University v. Schmid, 455 U.
S. 100 (1982).
Had the State sought review, this Court's Rule 10.4 makes clear
that Diamond, as an intervening defendant below, also would be
entitled to seek review, enabling him to file a brief on the merits
and to seek leave to argue orally. But this ability to ride
"piggyback" on the State's undoubted standing exists only if the
State is, in fact, an appellant before the Court; in the absence of
the State in that capacity, there is no case for Diamond to
join.
IV
A
Diamond claims that his interests in enforcement permit him to
defend the Abortion Law, despite Illinois' acquiescence in the
Court of Appeals' ruling of unconstitutionality. This claim also
must fail. Doctor Diamond attempts to equate his position with that
of appellees, the physicians who instituted this suit in the
District Court. Appellee, however, had standing to bring suit
against the state officials who were charged with enforcing the
Abortion Law because appellee faced possible criminal prosecution.
See, e.g., Doe v. Bolton, 410 U.
S. 179,
410 U. S. 188
(1973). The conflict between state officials empowered to enforce a
law and private parties subject to prosecution under that law is a
classic "case" or "controversy" within the meaning of Art. III.
The conflict presented by Diamond is different. Were the
Abortion Law to be held constitutional, Diamond could not compel
the State to enforce it against appellees, because "a private
citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another."
Linda R. S. v. Richard D.,
410 U. S. 614,
410 U. S. 619
(1973);
see Leeke v. Timmerman, 454 U. S.
83 (1981);
Sure-Tan, Inc. v. NLRB, 467 U.
S. 883 (1984).
See also Younger v. Harris,
401 U. S. 37,
401 U. S. 42
(1971);
Bailey v. Patterson, 369 U. S.
31,
369 U. S. 33
(1962).
Cf. Allen v. Wright, 468 U.
S. 737,
468 U. S. 754
(1984) ("[A]n asserted
Page 476 U. S. 65
right to have the Government act in accordance with law is not
sufficient, standing alone, to confer jurisdiction on a federal
court").
The concerns for state autonomy that deny private individuals
the right to compel a State to enforce its laws apply with even
greater force to an attempt by a private individual to compel a
State to create and retain the legal framework within which
individual enforcement decisions are made. The State's acquiescence
in the Court of Appeals' determination of unconstitutionality
serves to deprive the State of the power to prosecute anyone for
violating the Abortion Law. Diamond's attempt to maintain the
litigation is, then, simply an effort to compel the State to enact
a code in accord with Diamond's interests. But "the power to create
and enforce a legal code, both civil and criminal" is one of the
quintessential functions of a State.
Alfred L. Snapp & Son,
Inc. v. Puerto Rico ex rel. Barez, 458 U.
S. 592,
458 U. S. 601
(1982). Because the State alone is entitled to create a legal code,
only the State has the kind of "direct stake" identified in
Sierra Club v. Morton, 405 U.S. at
405 U. S. 740,
in defending the standards embodied in that code.
B
Even if there were circumstances in which a private party would
have standing to defend the constitutionality of a challenged
statute, [
Footnote 17] this
is not one of them. Diamond is not able to assert an injury in
fact. A physician has standing to challenge an abortion law that
poses for him a threat of criminal prosecution.
Doe v.
Bolton, 410 U.S. at
410 U. S. 188;
see Planned Parenthood of Central Mo. v. Danforth,
428 U. S. 52,
428 U. S. 62
(1976). In addition, a physician who demonstrates that abortion
funding regulations have a direct financial impact on his practice
may assert the constitutional rights of other individuals
Page 476 U. S. 66
who are unable to assert those rights themselves.
See
Singleton v. Wulff, 428 U. S. 106
(1976). Diamond attempts to assert an equivalent interest based
upon his personal status as a doctor, a father, and a protector of
the unborn. We must reject Diamond's claims that his personal and
professional interests confer standing.
Diamond, who is a pediatrician, claims that, if the Abortion Law
were enforced, he would gain patients; fewer abortions would be
performed, and those that would be performed would result in more
live births, because the law requires a physician to attempt to
preserve the life of the aborted fetus. By implication, therefore,
the pool of potential fee-paying patients would be enlarged. The
possibilities that such fetuses would survive and then find their
way as patients to Diamond are speculative, and "unadorned
speculation will not suffice to invoke the federal judicial power."
Simon v. Eastern Kentucky Welfare Rights Org.,
426 U. S. 26,
426 U. S. 44
(1976). Diamond's situation, based on speculation and hoped-for
fees, is far different from that of the physicians in
Wulff,
supra, where actual fees were limited by the challenged
Missouri statute.
Diamond also alleges that, as a physician, he has standing to
litigate the standards of medical practice that ought to be applied
to the performance of abortions. [
Footnote 18] Although Diamond's allegation may be cloaked
in the nomenclature of a special professional interest, it is
simply the expression of a desire that the Illinois Abortion Law,
as written, be obeyed. Article III requires more than a desire to
vindicate value interests.
See United States v. SCRAP, 412
U.S. at
412 U. S. 687.
It requires an "
injury in fact'" that distinguishes
"a person with a direct stake in the outcome of a litigation --
even
Page 476 U. S. 67
though small -- from a person with a mere interest in the
problem."
Id. at
412 U. S. 689,
n. 14. Diamond has an interest, but no direct stake, in the
abortion process. This "abstract concern . . . does not substitute
for the concrete injury required by Art. III."
Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. at
426 U. S. 40.
Similarly, Diamond's claim of conscientious objection to abortion
does not provide a judicially cognizable interest.
Doctor Diamond also asserts that he has standing as the father
of a daughter of childbearing years. First, to the extent that
Diamond's claim derives from § 3(3) of the Abortion Law, the
parental notification section, he lacks standing to continue this
litigation, for it does not address the validity of that provision.
Second, to the extent that he claims an interest in ensuring that
his daughter is not prescribed an abortifacient without prior
information -- a concern ostensibly triggered by the invalidation
of §§ 2(10) and 11(d) -- he has failed to show that he is a proper
person to advance this claim on her behalf. Diamond has not shown
either that his daughter is currently a minor or that she is
otherwise incapable of asserting her own rights. Diamond's failure
to adduce factual support renders him incapable of maintaining this
appeal in his capacity as a parent.
See Bender v. Williamsport
Area School Dist., 475 U. S. 534,
475 U. S.
548-549 (1986).
Nor can Diamond assert any constitutional rights of the unborn
fetus. [
Footnote 19] Only
the State may invoke regulatory measures to protect that interest,
and only the State may invoke the power of the courts when those
regulatory measures are subject to challenge.
Page 476 U. S. 68
V
Finally, Diamond asserts that he has standing based on two
interests that relate not to the Abortion Law, but to his
involvement in this litigation. Neither interest suffices.
A
Diamond's status as an intervenor below, whether permissive or
as of right, does not confer standing sufficient to keep the case
alive in the absence of the State on this appeal. Although
intervenors are considered parties entitled, among other things, to
seek review by this Court,
Mine Workers v. Eagle-Picher Mining
& Smelting Co., 325 U. S. 335,
325 U. S. 338
(1945), an intervenor's right to continue a suit in the absence of
the party on whose side intervention was permitted is contingent
upon a showing by the intervenor that he fulfills the requirements
of Art. III.
See id. at
325 U. S. 339.
See also Bryant v. Yellen, 447 U.
S. 352,
447 U. S. 368
(1980).
This Court has recognized that certain public concerns may
constitute an adequate "interest" within the meaning of Federal
Rule of Civil Procedure 24(a)(2),
see Cascade Natural Gas Corp.
v. El Paso Natural Gas Co., 386 U. S. 129,
386 U. S. 135
(1967), and has held that an interest under Rule 24(a)(2), which
provides for intervention as of right, [
Footnote 20] requires a "significantly protectable
interest."
See Donaldson v. United States, 400 U.
S. 517,
400 U. S. 531
(1971). However, the precise relationship between the interest
required to satisfy the Rule and the interest required to confer
standing has led to anomalous decisions in the Courts of Appeals.
[
Footnote 21] We need not
decide
Page 476 U. S. 69
today whether a party seeking to intervene before a district
court must satisfy not only the requirements of Rule 24(a)(2), but
also the requirements of Art. III. To continue this suit in the
absence of Illinois, Diamond himself must satisfy the requirements
of Art. III. The interests Diamond asserted before the District
Court in seeking to intervene plainly are insufficient to confer
standing on him to continue this suit now.
B
At oral argument, Diamond stated that the District Court has
assessed attorney's fees against him and the State, jointly and
severally. This fee award, Diamond asserted, provided the requisite
standing to litigate this case:
"The standing or the real controversy thus between the parties
to this case is a very real sum of money, a judgment that runs in
favor of the individual plaintiff physicians in this case and
against the individual defendants intervenors whom I
represent."
Tr. of Oral Arg. 4. Diamond is claiming that an award of fees
entered after a decision on the merits by the District Court and
the Court of Appeals, and after probable jurisdiction had been
noted by this Court, gives him a direct stake in the enforcement of
the Illinois Abortion Law. In short, because Diamond stands to lose
the amount of the fee unless the State's regulations concerning
Page 476 U. S. 70
abortion are reinstated, he claims he has been injured by the
invalidation of those regulations. [
Footnote 22]
But
Valley Forge Christian College, 454 U.S. at
454 U. S. 472,
makes clear that Art. III standing requires an injury with a nexus
to the substantive character of the statute or regulation at
issue:
"[A]t an irreducible minimum, Art. III requires the party who
invokes the court's authority to"
"show that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the
defendant,"
"
Gladstone, Realtors v. Village of Bellwood,
441 U. S.
91,
441 U. S. 99 (1979), and that
the injury 'fairly can be traced to the challenged action' and 'is
likely to be redressed by a favorable decision,'
Simon v.
Eastern Kentucky Welfare Rights Org., 426 U. S.
26,
426 U. S. 38,
426 U. S.
41 (1976)."
Any liability for fees is, of course, a consequence of Diamond's
decision to intervene, but it cannot fairly be traced to the
Illinois Abortion Law. The fee award is wholly unrelated to the
subject matter of the litigation, and bears no relation to the
statute whose constitutionality is at issue here. It is true that,
were the Court to resolve the case on the merits against appellees,
appellees would no longer be "prevailing parties" entitled to an
award of fees under 42 U.S.C. § 1988. But the mere fact that
continued adjudication would provide a remedy for an injury that is
only a byproduct of the
Page 476 U. S. 71
suit itself does not mean that the injury is cognizable under
Art. III.
VI
The State of Illinois, by failing to appeal, has indicated no
direct interest in upholding the four sections of the Abortion Law
at issue here. Diamond has stepped in, attempting to maintain the
litigation abandoned by the State in which he resides. Because he
lacks any judicially cognizable interest in the Abortion Law, his
appeal is dismissed for want of jurisdiction.
Is is so ordered.
JUSTICE WHITE concurs in the judgment.
[
Footnote 1]
1975 Ill.Laws, Pub.Act 79-1126, as amended, now codified as
Ill.Rev.Stat., ch. 38, �� 81-21 to 81-34 (1983). The 1975 Act was
passed over the Governor's veto. Substantial portions of it already
have been held to be unconstitutional.
See, e.g., Wynn v.
Scott, 449 F.
Supp. 1302 (ND Ill.1978),
aff'd sub nom Wynn v. Carey,
599 F.2d 193 (CA7 1979).
[
Footnote 2]
The defendants named in the complaint were the Attorney General
of the State and the Director of the Illinois Department of Public
Health, each in his official capacity, and the State's Attorney of
Cook County, in both his official capacity and as representative of
a class consisting of the State's Attorneys in all the counties of
the State of Illinois. A suit against a state officer in his
official capacity is, of course, a suit against the State.
See
Kentucky v. Graham, 473 U. S. 159,
473 U. S.
165-166 (1985). The District Court certified a defendant
class of State's Attorneys.
Charles v. Carey, Civ. No. 79C
4541 (Oct. 31, 1979).
[
Footnote 3]
On the same day, another and similar action was filed in the
same court by three other Illinois obstetrician-gynecologists and
two Illinois clinics that provide abortion services. The two suits
were consolidated by court. order on Nov. 14, 1979.
[
Footnote 4]
Doctor Diamond's motion to intervene and for appointment of
guardian was joined by Doctor Jasper F. Williams and David K.
Campbell. Doctor Williams, a physician engaged in private practice
in Illinois, in the alternative sought appointment as guardian
ad litem for unborn children subject to abortion. We are
advised that Doctor Williams died on April 15, 1985, after the
filing of the notice of appeal to this Court. No one has been
substituted for him. Mr. Campbell, who sought intervention as the
spouse of a woman of childbearing age, did not file or join a
notice of appeal to this Court.
[
Footnote 5]
Diamond claimed that, under the Abortion Law as a whole, fewer
abortions would be performed, and that those performed in
accordance with the Abortion Law would be designed to preserve the
life of aborted fetuses, resulting in more live births. Diamond
also rested his motion for intervention on § 13 of the Abortion
Law, which provides that a physician who refuses to perform
abortions based on conscientious objections will not be subject to
liability. He relied, furthermore, on § 11(1), to the effect that
violations of the Abortion Law constitute unprofessional conduct,
and on § 3.3, which provides for parental consultation.
[
Footnote 6]
Although the motion to intervene was on behalf of Doctor
Diamond, Doctor Williams, and Mr. Campbell,
see n 4,
supra, the District Court
granted leave to intervene to Americans United for Life Legal
Defense Fund, counsel for the intervenors below and for Diamond
before this Court.
[
Footnote 7]
The preliminary injunction also applied to the following
sections: § 2(2) (defining "viability"); § 3.3 (parental
consultation); § 3.4 (spousal consultation); § 3.5(2), in part (the
portion requiring that the patient be told,
inter alia:
"The State of Illinois wants you to know that in its view the child
you are carrying is a living human being whose life should be
preserved. Illinois strongly encourages you not to have an abortion
but to go through to childbirth"); § 4 (abortion subsequent to
first trimester); §§ 5(1), (2), and (3) (definition of
"viability"); § 9 (prohibition of saline amniocentesis after first
trimester); § 10(i) (certification as to nonviability or as to
medical indicators for abortion when fetus was viable); § 10(j)
(reporting requirements for saline amniocentesis); § 10(1), in part
(the reporting requirement as to the basis for a judgment
concerning the existence of a medical emergency); and § 12, in part
(the third sentence, prohibiting experimentation with or
exploitation of fetal tissue).
[
Footnote 8]
Section 6(1) then provided:
"No person who intentionally terminates a pregnancy after the
fetus is known to be viable shall intentionally fail to exercise
that degree of professional skill, care and diligence to preserve
the life and health of the fetus which such person would be
required to exercise in order to preserve the life and health of
any fetus intended to be born and not aborted. Any physician or
person assisting in such a pregnancy termination who shall
intentionally fail to take such measures to encourage or to sustain
the life of a fetus known to be viable before or after birth,
commits a Class 2 felony if the death of a viable fetus or infant
results from such failure."
Ill.Rev.Stat., ch. 38, � 81-26 (1983). On June 30, 1984, the
Illinois Legislature amended § 6(1), overriding another veto of the
Governor. 1984 Ill. Laws, Pub. Act 83-1128, § 1. The Court of
Appeals addressed the constitutionality of § 6(1) as it appeared
prior to the 1984 amendment.
See Charles v. Daley, 749
F.2d 452, 455 (CA7 1984).
[
Footnote 9]
Section 6(4) then provided:
"No person who intentionally terminates a pregnancy shall
intentionally fail to exercise that degree of professional skill,
care and diligence to preserve the life and health of the fetus
which such person would be required to exercise in order to
preserve the life and health of any fetus intended to be born and
not aborted when there exists, in the medical judgment of the
physician performing the pregnancy termination based on the
particular facts of the case before him, a possibility known to him
of sustained survival of the fetus apart from the body of the
mother, with or without artificial support. Any physician or person
assisting in such pregnancy termination who shall intentionally
fail to take such measures to encourage or sustain the life of such
a fetus, before or after birth, is guilty of a Class 3 felony if
the death of a viable fetus or an infant results from such
failure."
Ill.Rev.Stat., ch. 38, � 81-26 (1983). Section 6(4) was amended
by the 1984 statute cited in
n
8,
supra, but the Court of Appeals assessed its
constitutionality on the version quoted above.
See Charles v.
Daley, 749 F.2d at 455.
[
Footnote 10]
Section 2(10) provides:
"'Abortifacient' means any instrument, medicine, drug, or any
other substance or device which is known to cause fetal death when
employed in the usual and customary use for which it is
manufactured, whether or not the fetus is known to exist when such
substance or device is employed."
Ill.Rev.Stat., ch. 38, 181-22 (1983).
[
Footnote 11]
Section 11(d) provides in relevant part:
"Any person who prescribes or administers any instrument,
medicine, drug or other substance or device, which he knows to be
an abortifacient, and which is in fact an abortifacient, and
intentionally, knowingly or recklessly fails to inform the person
for whom it is prescribed or upon whom it is administered that it
is an abortifacient commits a Class C misdemeanor."
Ill.Rev.Stat., ch. 38, 1181-31 (1983).
[
Footnote 12]
The Court of Appeals instructed the District Court also to enter
a preliminary injunction against the following sections: §
3.2(A)(1)(a)(iii); § 3.5(2); § 6(6); § 3.2(A)(1)(a) (defining the
terms "by the physician who is to perform the abortion" and "the
woman is provided at least 24 hours before the abortion"); §
3.2(A)(1)(b) (defining the term "from the physician at least 24
hours before the abortion is to be performed"); §3.2(B)(1) (waiver
of waiting period); § 10(k) (reporting requirement for waiver of
waiting period); § 3.2(A)(1)(a) (defining the term "with a true
copy of her pregnancy test result"); and § 6(2).
See 627
F.2d at 792, and n. 36.
[
Footnote 13]
Other sections of the Abortion Law had been preliminarily
enjoined under a separate opinion by the District Court following
remand.
See Charles v. Carey, 679 F. Supp. 377 (1983).
[
Footnote 14]
The purpose of the Rule is to provide a means for a party below,
who was not notified that this Court's review has been sought by
another party, to make its interests known to the Court.
Frequently, an appellant would seek review as to only one party
below, permitting the judgment to stand as to others.
See
R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice §
6.20 (6th ed.1986), and § 6.35 (3d ed.1962) (describing evolution
of the Rule). This Court's Rule 10.4 therefore avoids the
adjudication of rights in a party's absence, but it does not
provide a means to obtain review in the absence of the filing of a
notice of appeal by a proper party.
[
Footnote 15]
Title 28 U.S.C. § 2101(c) provides:
"Any other appeal or any writ of certiorari intended to bring
any judgment or decree in a civil action, suit or proceeding before
the Supreme Court for review shall be taken or applied for within
ninety days after the entry of such judgment or decree."
[
Footnote 16]
The State's reasons for abandoning this suit are not articulated
in the record. We have noted above, however, that, during the
pendency of this case before the Court of Appeals, Illinois again
amended its Abortion Law. 1984 Ill.Laws, Pub.Act 83-1128. At the
time of the Court of Appeals' decision, which was based on the
preamendment version of the Abortion Law, the amended sections were
subject to a temporary restraining order.
See Keith v.
Daley, No. 84 C 5602 (ND Ill.1984). The Court of Appeals
declined to assess the constitutionality of the 1984 amendments and
rejected challenges of mootness based on those amendments.
Charles v. Daley, 749 F.2d at 455, 457-458. The State's
inaction may well be due to its concern with the amended, not the
earlier, form of the statutes under attack.
[
Footnote 17]
The Illinois Legislature, of course, has the power to create new
interests, the invasion of which may confer standing. In such a
case, the requirements of Art. III may be met.
See Simon v.
Eastern Kentucky Welfare Rights Org., 426 U. S.
26,
426 U. S. 41, n.
22 (1976).
[
Footnote 18]
Diamond's purported interest appears to rest on § 11(a) of the
Abortion Law, which provides that the requirements of that law
constitute the standards of conduct for the medical profession.
Since that provision is neither before the Court nor integrally
related to any of the sections at issue in this proceeding, it
cannot confer standing on Diamond.
[
Footnote 19]
Diamond claims that he is asserting the rights of his
prospective patients, who survive abortion, to be born with as few
handicapping conditions as possible. Diamond asserted this claim
before the District Court as a basis for appointment as guardian
ad litem for unborn fetuses. That claim was rejected by
the District Court.
[
Footnote 20]
Federal Rule of Civil Procedure 24(a)(2) provides for
intervention
"when the applicant claims an interest relating to the property
or transaction which is the subject of the action and he is so
situated that the disposition of the action may as a practical
matter impair or impede his ability to protect that interest,
unless the applicant's interest is adequately represented by
existing parties."
[
Footnote 21]
The Courts of Appeals have reached varying conclusions as to
whether a party seeking to intervene as of right must himself
possess standing.
Compare United States v. 39.56 Acres of
Land, 754 F.2d 856, 869 (CA7 1985) (intervention requires an
interest in excess of that required for standing),
cert.
pending sub nom. Save the Dunes Council, Inc. v. United
States, No. 85-426,
with Southern Christian Leadership
Conference v. Kelley, 241 U.S.App.D.C. 340, 747 F.2d 777
(1984) (equating interest necessary to intervene with interest
necessary to confer standing),
and United States v. American
Tel. & Tel. Co., 206 U.S.App.D.C. 317, 642 F.2d 1285
(1980) (intervention is proper only if the would-be intervenor has
an interest in the outcome of the suit different from that of the
public as a whole),
with Sagebush Rebellion, Inc. v. Watt,
713 F.2d 525 (CA9 1983) (resolving intervention questions without
reference to standing doctrine),
and Planned Parenthood of
Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861
(CA8 1977) (same).
[
Footnote 22]
While not determinative of the standing claim in this case,
Diamond responded to the fee award by filing a motion to dismiss
him from the litigation and name Americans United for Life, Inc.,
as the sole intervenor.
See n 6,
supra. In the alternative, Diamond asked the
District Court to clarify the original intervention order by
stating that "AUL is an intervening defendant for all purposes,
including the assessment of attorney's fees." The motion further
stated that "AUL is the real party in interest." In assessing fees
against appellant Diamond, the District Court stated that "the
State defendants and intervenors played at least equal roles in
defending the abortion statute."
Charles v. Daley, No.
79-C-4541 (Apr. 22, 1985).
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring in part and concurring in the
judgment.
I join the Court's judgment and Part I of its opinion, and I
agree with much of the Court's discussion of.why Dr. Diamond's
asserted interests in defending the Illinois Abortion Law do not
satisfy the Art. III standing requirement. I write separately,
however, because I do not agree with the Court's reasons for
rejecting Dr. Diamond's contention that Illinois' presence as an
appellee ensures that a justiciable controversy is before us. In my
view, Dr. Diamond was not a proper intervenor in the Court of
Appeals, and therefore Illinois is not before this Court in any
capacity, because Diamond was not authorized to bring this appeal
under 28 U.S.C. § 1254(2).
The Court assumes that Diamond could properly bring an appeal
under § 1254(2), and therefore that Illinois is present in this
Court as an appellee under this Court's Rule 10.4. The Court then
asserts that Illinois is not "the functional equivalent of an
appellant" by virtue of its status as a party under Rule 10.4.
Ante at
476 U. S. 62-63.
On this basis, the Court concludes that Illinois' "failure to
invoke our jurisdiction leaves the Court without a
case' or
`controversy' between
Page 476 U. S.
72
appellees and the State of Illinois," ante at
476 U. S. 63-64,
even if Illinois' interests are actually adverse to appellees'
interests. I believe this analysis is needlessly inconsistent with
this Court's opinion in Director, OWCP v. Perini North River
Associates, 459 U. S. 297
(1983), which holds that, once a case is properly brought here, the
case-or-controversy requirement can be satisfied even if the
parties who are asserting their adverse interests before this Court
are not formally aligned as adversaries.
In
Perini, an employee injured while performing his job
filed a claim for compensation under the Longshoremen's and Harbor
Workers' Compensation Act.
Id. at
459 U. S. 300.
The employer denied that the employee was covered by the Act, and
an Administrative Law Judge found for the employer. At that point,
the Director, Office of Workers' Compensation Programs, joined the
employee in an appeal to the Benefits Review Board.
Id. at
459 U. S.
300-301. The Board affirmed the denial of coverage, and
the employee sought review of its decision in the Court of Appeals,
where the Director participated as a respondent.
Id. at
459 U. S. 301.
The Court of Appeals denied the employee's petition, and the
Director -- but not the employee -- filed a petition for certiorari
in this Court.
Id. at
459 U. S. 301,
459 U. S. 303.
The employee did, however, file a brief in support of the
Director's petition for certiorari and a brief on the merits after
certiorari was granted.
Id. at
459 U. S.
303.
In this Court, the employer challenged the Director's standing
to seek review of the Court of Appeals' decision.
Id. at
459 U. S. 302.
Without deciding whether the Director had standing, we held
that
"the presence of [the employee] as a party respondent arguing
for his coverage under the Act assures that an admittedly
justiciable controversy is now before the Court."
Id. at
459 U. S. 305.
The basis for our holding was the employer's concession that the
Director was a proper party respondent before the Court of Appeals.
Id. at
459 U. S. 304.
As a proper party in the Court of Appeals, the Director had
"statutory authority to seek review in this Court" under 28
Page 476 U. S. 73
U.S.C. § 1254(1), which authorizes a grant of certiorari "upon
the petition of any party" below.
See id. at
459 U. S. 304,
and n. 13. Therefore, whether or not the Director had standing in
this Court, the Director's petition brought the employee before the
Court as a party respondent pursuant to this Court's Rule 19.6.
Id. at
459 U. S.
303-304, and n. 12. Because the employee clearly had
standing, and actively asserted his adverse interests in this
Court, a live case or controversy was presented.
Id. at
459 U. S.
305.
In two important respects, this case is directly analogous to
Perini. First, § 1254(2) provides that "a
party
relying on a State statute held by a court of appeals to be invalid
as repugnant to the Constitution . . . of the United States" may
bring an appeal to this Court (emphasis added). Consequently, if
Dr. Diamond was a proper party in the Court of Appeals, his
statutorily authorized appeal brought this case here, just as the
Director's petition for certiorari brought
Perini to this
Court. Second, since Rule 10.4 parallels, as to appeals in this
Court, the provisions of Rule 19.6 for cases which come here by way
of certiorari, Illinois' presence as an appellee, like the presence
of the employee in
Perini as a respondent, can satisfy the
requirements of a live case or controversy even if the party who
brought the case here lacks standing. I therefore disagree with the
Court's apparent conclusion that the mere fact that Illinois is not
an appellant ends the inquiry into whether its presence here
assures a live case or controversy.
Perini is fairly distinguishable from this case,
however, because, in my view, Dr. Diamond was not a proper
intervenor, at least not in the Court of Appeals, and consequently
was not a "party" authorized to bring an appeal here. Appellees
contend that "[i]ntervenor claimed no justiciable interest in any
of the four provisions before this Court when he sought to
intervene below." Brief for Appellees 14. The Courts of Appeals
have expressed differing views as to the relationship between the
interest required to confer standing and the
Page 476 U. S. 74
interest required to intervene under Rule 24 of the Federal
Rules of Civil Procedure.
See ante at
476 U. S. 68,
and n. 21. Like the Court, I find it unnecessary to decide that
question, because the challenge to Diamond's standing subsumes a
challenge to the sufficiency of his interest as an intervenor for
purposes of Rule 24. Appellees challenged the propriety of
Diamond's intervention in the District Court, and, although they
did not raise this issue in the Court of Appeals, I believe it may
properly be considered, since, under
Perini, it bears on
whether a justiciable controversy is presented in this Court. If
Diamond was not a proper party in the Court of Appeals, his appeal
is clearly improper under § 1254(2).
Rule 24(a)(2) provides that a person
"
shall be permitted to intervene in an action . . .
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and he is so
situated that the disposition of the action may as a practical
matter impair or impede his ability to protect that interest,
unless the applicant's interest is adequately represented by
existing parties."
(Emphasis added.) Rule 24(b)(2) provides that a person
"
may be permitted to intervene in an action . . . when
an applicant's claim or defense and the main action have a question
of law or fact in common. . . . In exercising its discretion the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties."
(Emphasis added.) The District Court did not explain whether it
granted intervention as of right under Rule 24(a)(2) or permissive
intervention under Rule 24(b)(2), and hence it is necessary to
consider whether the interests Diamond advanced could have made him
a proper intervenor on either theory in the Court of Appeals. This
Court's decision in
Donaldson v.
United
Page 476 U. S. 75
States, 400 U. S. 517
(1971), establishes that Diamond's asserted interests in the
provisions at issue in the Court of Appeals fall well outside the
ambit of Rule 24(a)(2), and it is likewise apparent that he was not
entitled to permissive intervention under Rule 24(b)(2).
Donaldson held that a taxpayer was not entitled to
intervene as of right in a proceeding to enforce an internal
revenue summons directed to his former employer, and ordering the
employer to produce its records concerning the taxpayer for use in
a civil investigation of the taxpayer. The Court recognized that
the taxpayer had an interest in the records, because they
presumably contained details of payments from his employer to him
"possessing significance for federal income tax purposes."
Id. at
400 U. S. 531.
Nonetheless, since this interest was "nothing more than a desire"
by the taxpayer to overcome his employer's "willingness, under
summons, to comply and to produce records," the Court held:
"This interest cannot be the kind contemplated by Rule 24(a)(2)
when it speaks in general terms of 'an interest relating to the
property or transaction which is the subject of the action.' What
is obviously meant there is a significantly protectable
interest."
Ibid.
Clearly, Donaldson's requirement of a "significantly protectable
interest" calls for a direct and concrete interest that is accorded
some degree of legal protection.
See Tiffany Fine Arts, Inc. v.
United States, 469 U. S. 310,
469 U. S. 315
(1985) (noting that Donaldson "held that the employee's interest
was not legally protectable, and affirmed the denial of the
employee's motions for intervention");
New Orleans Public
Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464
(CA5 1984) (en banc);
Southern Christian Leadership Conference
v. Kelley, 241 U.S.App.D.C. 340, 342, 747 F.2d 777, 779 (1984)
(per curiam).
See also Advisory Committee's Notes on
Fed.Rule Civ.Proc. 24, 28 U.S.C.App. p. 567. The abstract interests
advanced by Diamond are, if anything, less "significantly
protectable" than the interest of the
Page 476 U. S. 76
taxpayer in
Donaldson, who alleged that the summons was
unlawful because it was part of an investigation for purposes of
criminal prosecution.
See 400 U.S. at
400 U. S. 521.
Diamond's speculative claim that his practice may benefit from the
Illinois Abortion Law bespeaks a highly contingent financial
interest far less tangible than that of the taxpayer in
Donaldson, who faced a palpable threat of tax liability;
Diamond's "desire that the Illinois Abortion Law as written be
obeyed,"
ante at
476 U. S. 66,
should fare no better than the taxpayer's desire to prevent his
employer from putting him at risk by complying with the summons;
and Diamond's asserted interests as a father and a parent are
indistinguishable from the interests of any beneficiary of the
provisions of a criminal law.
I discern nothing in any of the provisions of the Illinois
Abortion Law that were challenged in the Court of Appeals to
suggest that Illinois meant to vest physicians, parents, or
daughters with "significantly protectable interest[s]." Illinois
enacted a criminal law which it would itself enforce, thereby
making violators liable to the public as a whole, not to those
members of the public who might in some degree benefit from the
law's enactment or enforcement. Under these circumstances, it seems
clear as a matter of interpreting Rule 24(a)(2) that only the State
has a "significantly protectable interest" in undertaking to defend
the standards contained in its criminal law, since there is no
indication that Illinois intended to confer legally protectable
interests on particular beneficiaries of that law.
Diamond's cause is not helped by Rule 24(b)(2), for he fails to
satisfy the Rule's requirement, which has remained intact since it
was first adopted in 1938, that "an applicant's claim or defense
and the main action have a question of law or fact in common." The
words "claim or defense" manifestly refer to the kinds of claims or
defenses that can be raised in courts of law as part of an actual
or impending law suit, as is confirmed by Rule 24(c)'s requirement
that a person desiring to intervene
Page 476 U. S. 77
serve a motion stating "the grounds therefor" and "accompanied
by a pleading setting forth the claim or defense for which
intervention is sought." Thus, although permissive intervention
"plainly dispenses with any requirement that the intervenor shall
have a direct personal or pecuniary interest in the subject of the
litigation,"
SEC v. United States Realty & Improvement
Co., 310 U. S. 434,
310 U. S. 459
(1940), it plainly
does require an interest sufficient to
support a legal claim or defense which is "founded upon [that]
interest" and which satisfies the Rule's commonality requirement.
Id. at
310 U. S. 460.
Dr. Diamond simply has no claim or defense in this sense; he
asserts no actual, present interest that would permit him to sue or
be sued by appellees, or the State of Illinois, or anyone else, in
an action sharing common questions of law or fact with those at
issue in this litigation.
This analysis is not affected by any potential liability for
attorney's fees to which Diamond may be subject in connection with
his intervention in this litigation. I agree with the Court that
any such liability is "a byproduct of the suit itself,"
ante at
467 U. S. 70-71,
and, as such, it cannot have served as a basis for intervention in
the Court of Appeals. At oral argument the question was raised
whether Diamond, if not a proper intervenor, could nonetheless be
considered a party against whom attorney's fees may be awarded to
"the prevailing party" under 42 U.S.C. § 1988. That issue, however,
is not before this Court, since an award of attorney's fees is
"uniquely separable from the cause of action" on the merits,
White v. New Hampshire Dept. of Employment Security,
455 U. S. 445,
455 U. S. 452
(1982);
FCC v. League of Women Voters of California,
468 U. S. 364,
468 U. S.
373-375, n. 10 (1984), and the proceedings in the
District Court concerning attorney's fees are neither contained in
the record before us nor the subject of the questions presented in
Diamond's jurisdictional statement. Accordingly, I express no view
as to whether an award of attorney's fees against Dr. Diamond would
be
Page 476 U. S. 78
proper with respect to any proceedings in which he was not a
proper intervenor.
Dr. Diamond, then, was not a proper intervenor in the Court of
Appeals, although of course it would have been open to that court
to allow him to file a brief as an
amicus curiae.
Accordingly, Dr. Diamond was not authorized to bring an appeal in
this Court, and the appeal must be dismissed for want of
jurisdiction.