U.S. Supreme Court
DIAMOND v. CHARLES, 476 U.S. 54 (1986)
476 U.S. 54
DIAMOND ET AL. v. CHARLES ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Argued November 5, 1985
Decided April 30, 1986
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
Because appellant lacks any judicially cognizable interest in the Illinois
Abortion Law, his appeal is dismissed for want of jurisdiction. Pp. 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. 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. 62-64. [476 U.S. 54, 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. 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. 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. 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. 71. WHITE, J., concurred in the judgment.
Dennis J. Horan argued the cause for appellants. With him on the briefs were
Victor G. Rosenblum, Edward R. Grant, and Maura K. Quinlan.
R. Peter Carey argued the cause for appellees. With him on the brief were
Colleen K. Connell, Frank Susman, Janet Benshoof, and Nan D. Hunter.*
[Footnote *] Briefs of amici curiae urging
reversal were filed for the United States by Acting Solicitor General Fried,
Acting Assistant Attorney General Willard, Deputy Assistant Attorney General
Kuhl, John F. Cordes, and John [476 U.S. 54, 56]
M. Rogers; for the Catholic League for Religious and Civil Rights by Steven
Frederick McDowell; and for Senator Gordon J. Humphrey et al. by Robert A.
Destro and Basile J. Uddo.
Briefs of amici curiae urging affirmance were filed for the Attorney General
of New York by Robert Abrams, pro se, Robert Hermann, Solicitor General,
Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M.
Cohen, and Martha J. Olson, Assistant Attorneys General; for the American
Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips,
Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A.
Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by
Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National
Abortion Rights Action League et al. by Lynn I. Miller; for the National
Organization for Women et al. by Diane E. Thompson; and for Planned Parenthood
Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul.
Briefs of amici curiae were filed for the Women Lawyers' Association of Los
Angeles et al. by Susan R. Schwartz, Carol Boyk, Judith Gordon, and Lorraine
Loder; for the Unitarian Universalist Association et al. by Madeline Kochen; for
Senator Bob Packwood et al. by Laurence H. Tribe and Kathleen M. Sullivan; and
for Susan Bandes et al. by Arthur Kinoy. [476 U.S. 54, 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.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. [476 U.S. 54, 57]
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.2 Appellees sought declaratory and
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.4 The motion for intervention professed to be [476 U.S. 54, 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.5
Over appellees' objection, the District Court granted Diamond's motion to
intervene.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
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).7 These sections prescribe the [476 U.S. 54, 59] standard of care that must be exercised
by a physician in performing an abortion of a viable fetus,8 and of a possibly viable fetus.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) [476 U.S. 54, 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,"10 and as to 11(d), which requires a physician who prescribes an
abortifacient to tell the patient what it is.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 1005-9-1(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).12 [476 U.S. 54, 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).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
"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 co-terminous 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.
Article III of the Constitution limits the power of federal
courts to deciding "cases" and "controversies." This requirement [476 U.S. 54, 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, 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, 99
(1979); see also Warth v. Seldin, 422 U.S. 490, 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, 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, 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, 687 (1973).
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 [476 U.S. 54, 63] of an appellant. Accordingly,
Diamond asserts, there is no jurisdictional problem in the case. This claim must
It is true that, as a party below, the State remains a party here under our
Rule 10.4.14 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).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.16 The State's general interest may be adverse to the interests
of appellees, but its failure to [476 U.S. 54,
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.
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. Appellees, however, had standing to
bring suit against the state officials who were charged with enforcing the
Abortion Law because appellees faced possible criminal prosecution. See e. g.,
Doe v. Bolton, 410 U.S. 179, 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, 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, 42
(1971); Bailey v. Patterson, 369 U.S. 31, 33 (1962). Cf. Allen v. Wright, 468
U.S. 737, 754 (1984) ("[A]n asserted [476 U.S.
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, 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 740, in defending the
standards embodied in that code.
Even if there were circumstances in which a private party
would have standing to defend the constitutionality of a challenged statute,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 188; see
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 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 [476 U.S. 54, 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
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, 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.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 687. It requires an "`injury in fact'" that distinguishes "a
person with a direct stake in the outcome of a litigation - even [476 U.S. 54, 67] though small - from a person with a
mere interest in the problem." Id., at 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 40. Similarly, Diamond's claim of
conscientious objection to abortion does not provide a judicially cognizable
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, 548-549
Nor can Diamond assert any constitutional rights of the unborn fetus.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.
[476 U.S. 54, 68]
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.
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, 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 339. See also Bryant v. Yellen, 447
U.S. 352, 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, 135 (1967), and has held that an interest under Rule 24(a)(2), which
provides for intervention as of right,20
requires a "significantly protectable interest." See Donaldson v. United States,
400 U.S. 517, 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.21
We need not decide [476 U.S. 54, 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.
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
"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
[476 U.S. 54, 70] abortion are reinstated, he claims he has been injured
by the invalidation of those regulations.22
But Valley Forge Christian College, 454 U.S., at 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, 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, 38, 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
[476 U.S. 54, 71] suit itself does not mean that the injury is cognizable
under Art. III.
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.
It 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
[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, 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(l), in part (the
reporting requirement as to the basis for a judgment concerning the existence of
a medical emergency); and [476 U.S. 54, 59]
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, _ 81-22 (1983).
[Footnote 11] Section 11(d) provides in
"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, _ 81-31 (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, 579 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
[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, 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. 39.36 Acres of
Land, 754 F.2d 855, 859 (CA7 [476 U.S. 54, 69]
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,
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 62-63. On this basis, the Court concludes that Illinois' "failure to
invoke our jurisdiction leaves the Court without a `case' or `controversy'
between [476 U.S. 54, 72] appellees and
the State of Illinois," ante, at 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 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 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 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 301, 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 303.
In this Court, the employer challenged the Director's standing to seek review
of the Court of Appeals' decision. Id., at 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 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 304. As a proper party in the
Court of Appeals, the Director had "statutory authority to seek review in this
Court" under [476 U.S. 54, 73] 28 U.S.C.
1254(1), which authorizes a grant of certiorari "upon the petition of any party"
below. See id., at 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 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.,
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
[476 U.S. 54, 74] interest required to intervene under Rule 24 of the
Federal Rules of Civil Procedure. See ante, at 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 [476 U.S. 54, 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
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 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, 315
(1985) (noting that Donaldson "held that the employee's interest was not legally
protectible 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
[476 U.S. 54, 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 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 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
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 protectible interest 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 [476 U.S. 54, 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, 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 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
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 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, 452 (1982); FCC v. League of Women Voters of California, 468 U.S.
364, 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 [476 U.S. 54, 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. [476 U.S. 54, 79]
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