Do Anti-Abortion Clinics Have Standing to Intervene in Coercive Counseling Lawsuit?

I have a legal question: do the Alpha Center and the Black Hills Crisis Pregnancy Center have standing to intervene in Planned Parenthood's lawsuit against the State of South Dakota and its anti-abortion coercive counseling law?

Attorney General Marty Jackley announced yesterday that the state will not appeal Judge Karen Schreier's injunction against 81% of South Dakota's latest really bad abortion restrictions. AG Jackley's desire to keep our powder dry signals Pierre's recognition that defending the state-mandated brainwashing of pregnant women is a losing battle.

But AG Jackley announces that two pregnancy brainwashing centers, the Alpha Center of Sioux Falls and the Black Hill Crisis Pregnancy Center of Rapid City, are seeking intervener status in the case. These CPCs have both signed up for the South Dakota's pregnancy propagandist registry (Black Hills CPC under the name Care Net Pregnancy Resource Center). AG Jackley says he supports these intervener requests for three reasons:

1. The Pregnancy Help Centers have a significant interest in the process and method of providing abortion disclosures and counseling for women considering abortions;
2. The Pregnancy Help Centers add a specialized expertise with respect to the subject matter of abortion disclosures and counseling, which may aid in demonstrating the State's fundamental interest of ensuring that women are fully informed and uncoerced when considering abortions and alternatives; and
3. Cost considerations on any matters of joint or similar interest [Attorney General Marty Jackley, press release, 2011.07.26].

These two organizations have intervened in previous litigation concerning South Dakota's bad abortion laws. But in this case, do they have a right to intervene?

Something called Rule 24 sets out who can intervene in federal cases. Prior case law (see here and here for examples) establishes four criteria for determining right of intervention:

1. the motion must be timely,
2. the intervenor must have a substantial legal interest in the subject matter of the action;
3. the intervenor's ability to protect its interest may be impaired in the absence of intervention; and
4. the parties already before the court may not adequately represent intervenor's interest.

The CPCs' request appears timely, but what's their legal interest? What right do Leslee Unruh and her Rapid City counterparts lose if HB 1217 fails judicial scrutiny, other than the right to behave as the state's Uterus Police? With or without HB 1217, the CPCs can carry on their normal business and advocacy. If the state loses, the CPCs lose no property... unless they think that women's bodies and minds are their property.

Standard #4 suggest that the intervenors call into question the ability of the four named defendants, all state officials, including AG Jackley, to defend their interest in court. Their interests are identical: making abortion practically unobtainable in South Dakota. Winning this case hinges on demonstrating the state's compelling interest in intruding on the doctor-patient relationship by forcing women to submit to unlicensed and likely untruthful and incomplete "counseling." Demonstrating that state interest seems to be primarily the job of the state, not some private clinic.

AG Jackley cites the CPCs' "expertise" as a reason to grant them intervenor status. But if it's expertise we want, doesn't that mean we just call them to the stand as witnesses rather than crowding the defense table with more lawyers conducting their own cross-examinations?

This argument is probably small potatoes: You could let the hundred best lawyers in the country take a swing for the defense, and they still wouldn't overturn the reasoning from Judge Schreier that says HB 1217 will not stand. But there may be legal reason for Judge Schreier to tell the Alpha Center and the Black Hills CPC to sit down and be quiet until they are called to the witness stand.