State of California v. United States , 450 F.3d 436 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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.
No. 05-17292
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF LABOR; ELAINE  D.C. No.
CHAO, in her official capacity as CV-05-00328-JSW
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.

6717
6718 STATE OF CALIFORNIA v. UNITED STATES
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. No. 05-17312
DEPARTMENT OF LABOR; ELAINE
CHAO, in her official capacity as
the Secretary of Labor;
 D.C. No.
CV-05-00328-JSW
DEPARTMENT OF HEALTH AND OPINION
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.

STATE OF CALIFORNIA v. UNITED STATES 6719
AMERICAN ASSOCIATION OF PRO-LIFE 
OBSTETRICIANS AND GYNECOLOGISTS;
CHRISTIAN MEDICAL ASSOCIATION;
FELLOWSHIP OF CHRISTIAN PHYSICIAN 
ASSISTANTS,
Third-party-defendants-
Appellants.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
May 19, 2006—San Francisco, California
Filed June 9, 2006
Before: Betty B. Fletcher, Alex Kozinski and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Kozinski
6722 STATE OF CALIFORNIA v. UNITED STATES
COUNSEL
James F. Sweeney, Sweeney & Greene LLP, Sacramento,
California, for appellant Alliance of Catholic Health Care.
Steven H. Aden, M. Casey Mattox, Center for Law and Reli-
gious Freedom of the Christian Legal Society, Springfield,
Virginia, for appellants Christian Medical Association et al.
Antonette B. Cordero, Deputy Attorney General, Los Ange-
les, California, for the plaintiffs-appellees.
August E. Flentje, Assistant United States Attorney, Washing-
ton, DC, for the defendants-appellees.
OPINION
KOZINSKI, Circuit Judge:
We consider whether health care providers are entitled to
intervene in a case challenging the constitutionality of a fed-
eral 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
STATE OF CALIFORNIA v. UNITED STATES 6723
services “for any condition in which the person [seeking such
services] is in danger of loss of life, or serious injury or ill-
ness.” 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 provid-
ers to offer abortion services. See Consolidated Appropria-
tions 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 abor-
tions.1 See id. Div. F, § 508(d), 118 Stat. at 3163.
In light of the Weldon Amendment, enforcement of Cali-
fornia 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 dec-
laration that the Amendment is unconstitutional on the
grounds that it exceeds Congress’s spending power and
1
The portion of the Weldon Amendment at issue in this case reads:
(1) None of the funds made available in this Act may be made
available to a Federal agency or program, or to a State or local
government, if such agency, program, or government subjects
any institutional or individual health care entity to discrimination
on the basis that the health care entity does not provide, pay for,
provide coverage of, or refer for abortions.
(2) In this subsection, the term “health care entity” includes an
individual physician or other health care professional, a hospital,
a provider-sponsored organization, a health maintenance organi-
zation, a health insurance plan, or any other kind of health care
facility, organization, or plan.
Id. § 508(d), 118 Stat. at 3163.
6724 STATE OF CALIFORNIA v. UNITED STATES
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 Appropria-
tions Act. While the Weldon Amendment does not, techni-
cally, compel California to refrain from enforcing section
1317 against doctors who refuse to perform abortions, Cali-
fornia 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 lit-
igation 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 stat-
utory 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 defen-
dants would have this Court believe. Instead, the
STATE OF CALIFORNIA v. UNITED STATES 6725
undisputed evidence in this case shows that state
officials are already receiving information about
alleged denials of emergency abortion-related medi-
cal services in California . . . .
Plaintiffs’ Combined Opposition to Cross-Motion for Sum-
mary Judgment and Reply, at 6 (emphasis added) (internal
citations omitted).
Two separate groups—the appellants here—sought to inter-
vene 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 Cal-
ifornia. 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 emer-
gencies. 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 med-
ical emergency justifying an abortion.
The existing parties opposed intervention and the district
court ruled in their favor. Finding that the proposed interve-
nors 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
[1] On appeal, appellants challenge only the denial of inter-
vention 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
6726 STATE OF CALIFORNIA v. UNITED STATES
(9th Cir. 2001). In determining whether intervention is appro-
priate, 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 sit-
uated that the disposition of the action may as a prac-
tical 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.
[2] 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 Amend-
ment 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 “undiffer-
entiated” nor “generalized.” See United States v. Alisal Water
Corp., 370 F.3d 915, 920 (9th Cir. 2004) (quoting Public Ser-
vice Corp. 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 pro-
tection against state criminal prosecution or loss of their med-
ical 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
STATE OF CALIFORNIA v. UNITED STATES 6727
choose between adhering to their beliefs and losing their pro-
fessional 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 give the proposed intervenors any
enforceable rights, nor does it seek to protect any of their
existing legal rights. However, our intervention caselaw has
not turned on such technical distinctions. Rather, we have
taken the view that a party has a sufficient interest for inter-
vention purposes if it will suffer a practical impairment of its
interests as a result of the pending litigation.
In County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.
1980), for example, the underlying litigation concerned a fed-
eral statute passed to protect small farmers on lands receiving
federally subsidized water. The statute did not confer any
rights on the small farmers; instead, it required owners of
larger farms, as a condition of receiving federally subsidized
water, to dispose of any excess land over a certain acreage at
below-market rates. Id. at 437. In allowing the small farmers
to intervene, we noted that “[w]e have rejected the notion that
Rule 24(a)(2) requires a specific legal or equitable interest,”
and that the small farmers were “precisely those Congress
intended to protect” with the statute. Id. at 438.
[3] The proposed intervenors’ interest in the litigation here
is at least as substantial as that of the farmers in County of
Fresno. Congress passed the Weldon Amendment precisely to
keep doctors who have moral qualms about performing abor-
tions from being put to the hard choice of acting in confor-
mity with their beliefs, or risking imprisonment or loss of
professional livelihood. And the Amendment appears to have
had its intended effect: The state, in its complaint, contends
that the Weldon Amendment “is so broad and severe as to
leave the Plaintiffs with no choice but to accede to Congress’s
dictates.” That Congress chose to use its spending power as
6728 STATE OF CALIFORNIA v. UNITED STATES
a lever, rather than passing legislation granting affirmative
rights to those represented by the proposed intervenors, is of
no consequence. The Weldon Amendment effectively shields
the proposed intervenors and their members from the difficult
moral choice to which enforcement of section 1317 could oth-
erwise subject them. The fact that California brought this law-
suit seeking to invalidate the Amendment, or restrict its
sweep, is proof in itself of the efficacy of this congressional
enactment and its significance to the proposed intervenors.
The interest of the proposed intervenors here is far more
direct than that of the proposed intervenors in Donnelly. In
that case, which had been brought by female Forest Service
employees, male Forest Service employees sought to inter-
vene to assert their own claims of gender-based discrimina-
tion. See 159 F.3d at 407. We concluded the fate of the
women’s claims wouldn’t affect the men’s claims at all, so we
denied intervention on the grounds that the men’s interests
were unrelated to the underlying litigation. Id. at 409-10. In
contrast, this case will determine conclusively whether, and
the degree to which, the Weldon Amendment handcuffs states
that would force health care providers to perform abortions.
[4] 2. Having found that appellants have a significant pro-
tectable interest, we have little difficulty concluding that the
disposition of this case may, as a practical matter, affect it.
See Berg, 268 F.3d at 822 (“We follow the guidance of Rule
24 advisory committee notes that state that ‘[i]f an absentee
would be substantially affected in a practical sense by the
determination made in an action, he should, as a general rule,
be entitled to intervene.’ ” (alteration in original) (quoting
Fed. R. Civ. P. 24 advisory committee note to 1966 amend-
ment)). Should California prevail in this lawsuit, it will be
free to prosecute health care providers for failure to provide
emergency abortion services, however it defines that phrase.
California’s argument that proposed intervenors have failed to
show that section 1317 is being actively enforced against
health care providers who refuse to perform abortions is
STATE OF CALIFORNIA v. UNITED STATES 6729
fatally undermined by the state’s own evidence demonstrating
that its employees are investigating complaints that a hospital
has failed to provide emergency abortions. See p. 6724 supra.
The same evidence that bolsters the state’s standing to sue
also bolsters the case for intervention.
Even if this lawsuit would affect the proposed intervenors’
interests, their interests might not be impaired if they have
“other means” to protect them. Alisal, 370 F.3d at 921. In
Alisal, the United States sought to place the defendant in
receivership to remedy environmental violations it had com-
mitted. One of the defendant’s judgment creditors tried to
intervene because it feared that the receiver’s power to veto
outlays would impair its ability to enforce its judgment. Id. at
918. We held that litigation would not impair the creditor’s
interests because the district court had set up a separate pro-
cess for approving claims against the debtor that was suffi-
cient to protect the proposed intervenor’s interests. Id. at 921.
By contrast, proposed intervenors here have no alternative
forum where they can mount a robust defense of the Weldon
Amendment. See p. 6730 infra.
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir.
2002), on which California relies, is not particularly helpful
to it. That case involved a lawsuit by the United States seek-
ing to enjoin certain police practices. A number of community
groups sought to intervene seeking to protect the rights of
their members to be free from unconstitutional police prac-
tices. We denied intervention on another ground, but noted it
was “doubtful” that these proposed intervenors had shown
their interests would be impaired by the litigation because the
lawsuit did not “prevent any individual from initiating suit
against LAPD officers who engage in unconstitutional prac-
tices or against the City defendants for engaging in unconsti-
tutional patterns or practices.” Id. at 402.
California’s reliance on this passing comment in City of
Los Angeles is misplaced. The comment does not amount to
6730 STATE OF CALIFORNIA v. UNITED STATES
a holding because nothing in the case turned on it. And in any
event, the comment is entirely unhelpful to the opponents of
intervention here. The community groups in City of Los Ange-
les, after all, were not precluded by the pending litigation
from bringing their own lawsuits to enjoin or seek damages
for unconstitutional police practices. By contrast, the pro-
posed intervenors here have no such opportunity. Because the
Weldon Amendment is a spending measure and thus gives the
proposed intervenors no enforceable rights, they would be
unable to bring a separate suit where they could argue for a
broad reading of the Amendment. Cf. Massachusetts (Froth-
ingham) v. Mellon, 262 U.S. 447, 487-88 (1923) (holding that
taxpayers generally lack standing to contest public expendi-
tures); Flast v. Cohen, 392 U.S. 83, 105-06 (1968) (carving
out a narrow exception to Frothingham for Establishment
Clause challenges). The argument raised by both of the exist-
ing parties that the proposed intervenors and their members
could raise the issue as a defense if they are ever prosecuted
by the California authorities for violating section 1317 is no
more persuasive. Setting aside whether the ability to raise a
defense in a criminal prosecution is ever an adequate substi-
tute for settling a legal issue ahead of time and avoiding pros-
ecution altogether, the simple answer to this argument is that
a spending measure such as the Weldon Amendment can’t
possibly be used as a defense in a prosecution for a state
crime.
While City of Los Angeles does not support the view that
intervention is inappropriate here, another aspect of the case
actually helps the proposed intervenors. In addition to the
community groups there, the designated bargaining unit for
the police officers also sought to intervene in the litigation.
288 F.3d at 396. While denying intervention to the commu-
nity groups, we granted intervention to the bargaining unit
because the proposed consent decree in the case purported to
give the district court authority to override the officers’ col-
lective bargaining agreement. Id. at 401. In granting interven-
tion, we noted that once the consent decree was entered, the
STATE OF CALIFORNIA v. UNITED STATES 6731
officers would have no alternative forum to protect their
rights. Id. The proposed intervenors here are in much the
same position. If, as a result of this litigation, the Weldon
Amendment is struck down, or its sweep is substantially nar-
rowed, the proposed intervenors will have no alternative
forum in which they might contest that interpretation of the
Amendment.
[5] 3. Finally, we turn to whether the United States will
adequately represent the proposed intervenors’ interests in
this action. We have observed that “[w]hen an applicant for
intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation
arises.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003). Moreover, “[t]here is also an assumption of adequacy
when the government is acting on behalf of a constituency
that it represents. In the absence of a ‘very compelling show-
ing to the contrary,’ it will be presumed that a state adequately
represents its citizens when the applicant shares the same
interest.” Id. (quoting 7C Charles Alan Wright, et al., Federal
Practice and Procedure: Civil 2d § 1909, at 332 (2d ed. 1996))
(internal citation omitted). Arguably, this principle is nowhere
more applicable than in a case where the Department of Jus-
tice deploys its formidable resources to defend the constitu-
tionality of a congressional enactment. See generally Seth P.
Waxman, Defending Congress, 79 N.C. L. Rev. 1073 (2001).
[6] Here, however, the United States and the proposed
intervenors have distinctly different, and likely conflicting,
interests. “Often, defending Acts of Congress leads the Solici-
tor General to lean heavily on the Ashwander principle of
construing a statute so as to avoid constitutional doubt.” See
id. at 1079-80 (citing Ashwander v. TVA, 297 U.S. 288, 348
(1936) (Brandeis, J., concurring)). We have recognized that
willingness to suggest a limiting construction in defense of a
statute is an important consideration in determining whether
the government will adequately represent its constituents’
6732 STATE OF CALIFORNIA v. UNITED STATES
interests. See Prete v. Bradbury, 438 F.3d 949, 958 (9th Cir.
2006).
Of course, just because the government theoretically may
offer a limiting construction of a statute that is narrower than
that of a party proposing intervention does not mean that the
party has overcome the presumption of adequacy of represen-
tation. In order to make a “very compelling showing” of the
government’s inadequacy, the proposed intervenor must dem-
onstrate a likelihood that the government will abandon or con-
cede a potentially meritorious reading of the statute.
Here, there is a limiting construction that the government
could advocate that might assuage many of the constitutional
doubts clouding the Weldon Amendment: The Weldon
Amendment does not reach statutes like California Health and
Safety Code section 1317 that do not facially discriminate
against health care providers who refuse to provide abortion
services. Section 1317, after all, speaks in terms of health care
providers that fail to provide any emergency service; it does
not single out abortion for special treatment.
[7] That the government will offer such a limiting construc-
tion of the Amendment is not just a theoretical possibility; it
has already done so. In its motion for summary judgment, the
United States suggested that “because § 1317 applies to medi-
cal emergencies involving any life-threatening or other seri-
ous condition, and not simply abortions, it does not on its face
constitute discrimination within the meaning of the Weldon
Amendment.” And it has indicated that it may adopt the posi-
tion that “enforcement of a facially neutral state statute such
as § 1317 (which applies to all emergency medical services,
not simply abortions) [does not] constitute discrimination
under the Weldon Amendment.” By contrast, the proposed
intervenors take the position that the Weldon Amendment
must be read broadly to cut off federal funding to any state
that uses facially neutral laws—such as section 1317—to
STATE OF CALIFORNIA v. UNITED STATES 6733
force health care providers to perform abortions when they
are unwilling to do so.2
[8] These are far more than differences in litigation strategy
between the United States and the proposed intervenors. See
City of Los Angeles, 288 F.3d at 402-03 (“[M]ere[ ] differ-
ences in strategy . . . are not enough to justify intervention as
a matter of right.”). They go to the heart of the defense of the
Weldon Amendment. By making the strident argument that
section 1317 is irreconcilably in conflict with the Weldon
Amendment, the proposed intervenors bring a point of view
to the litigation not presented by either the plaintiffs or the
defendants.
[9] We therefore conclude that the proposed intervenors in
this case, like those in Forest Conservation Council v. United
States Forest Service, 66 F.3d 1489, 1499 (9th Cir. 1995),
have “more narrow, parochial interests” than the United
States. Through the presentation of direct evidence that the
United States will take a position that actually compromises
(and potentially eviscerates) the protections of the Weldon
Amendment, the proposed intervenors have overcome the pre-
sumption that the United States will act in their interest.
***
[10] The proposed intervenors have a significant protect-
able interest at stake in this case that could be impaired by the
outcome. They have no other means to protect this interest,
and no current party adequately represents it. We therefore
reverse and remand with instructions that both proposed inter-
2
As noted, the two proposed intervenors have somewhat different inter-
ests, in that Alliance members will never provide abortion services,
whereas Medical Groups members will do so in certain limited circum-
stances. This difference is of no moment here because both groups suggest
an interpretation of the Amendment that is far broader than that advocated
by the United States.
6734 STATE OF CALIFORNIA v. UNITED STATES
venors be made parties to the litigation aligned with the
defendant. The district court should take all reasonable steps
to put the new parties on an equal footing with the original
parties. Because the district court will soon hear arguments on
the cross-motions for summary judgment, time is of the
essence; the clerk is instructed to issue the mandate forthwith.
REVERSED AND REMANDED.