California ex rel. Lockyer v. U.S.

• Decision Date: 09 June 2006
• Docket Number: No. 05-17312.,No. 05-17292.,05-17292.,05-17312.
• Citation: 450 F.3d 436
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 436

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), 118 Stat. at 3163.

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, 268 F.3d 810, 818 (9th Cir.2001). In determining whether intervention is appropriate, we apply a four-part test:

(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, 995 F.2d 1478, 1481 (9th Cir.1993). Appellees concede that the intervention motions were timely, so we address only the last three factors.

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, 159 F.3d 405, 409 (9th Cir.1998). The United States forthrightly conceded at oral argument what seems beyond dispute—that Congress passed the Weldon Amendment to protect health care providers like those represented by the proposed intervenors: "They are the intended beneficiaries of this law using the encouragement of Congress's spending power to try and protect their conscience rights."

The proposed intervenors' interest thus is neither "undifferentiated" nor "generalized." See United States v. Alisal Water Corp., 370 F.3d 915, 920 (9th Cir. 2004) (quoting Public Service Co. v. Patch, 136 F.3d 197, 205 (1st Cir.1998)). For the health care providers represented by proposed intervenors, the Weldon Amendment provides an important layer of protection against state criminal prosecution or loss of their medical licenses. If the Weldon Amendment is declared unconstitutional or substantially narrowed as a consequence of this litigation, they will be more likely to be forced to choose between adhering to their beliefs and losing their professional licenses. Such an interest is sufficiently "direct, non-contingent, [and] substantial." Dilks v. Aloha Airlines, Inc., 642 F.2d 1155, 1157 (9th Cir.1981) (per curiam).

California and the United States point out that the Weldon Amendment does not...