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.
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.
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.
Over appellees' objection, the District Court granted Diamond's motion to intervene.
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).
The plaintiffs appealed the denial of the preliminary injunction as to § 2(10), which defines the term "abortifacient,"
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:
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
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
It is true that, as a party below, the State remains a party here under our Rule 10.4.
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
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,
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.
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 (1986).
Nor can Diamond assert any constitutional rights of the unborn fetus.
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,
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:
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
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:
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
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.
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
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 28
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
Rule 24(a)(2) provides that a person
Rule 24(b)(2) provides that a person
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
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:
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
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
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
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.
"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).
"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.
" `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).
"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).
"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."