again may please the court the genesis of this case is a prosecution commenced in panic county district court during may two thousand and eleven and in connection with an abortion allegedly occurred in december of two thousand and ten over time however it has evolved into a rather complicated set of issues of which the most important was not in medical or whatever sometimes referred to as medication abortions which would allow his patients to complete the abortion in their own homes in a manner discreet issues before the court today the first issue is whether mr mccormick's challenge to her two thousand and eleven prosecution is  moot we believe the answer to that question is plainly yes the second issue is whether the terms quote properly close quote end quote satisfactory close quote and i do hope code the third issue and we believe the most important issue for purposes of this case is whether dr hearns proposed provider plan is consistent with the interest of his peers or patients an accounting women the answer to the latter two questions is no unless the court has questions about the mootness issue that is to say prosecuting attorney hired him and before he left office in january of this year i made a determination this is back in august of last year scuse me of august of two thousand  determination or terminations of any intent to prosecute ms mccormick and there is obviously in the american cargo case a president from this circuit as well as other circuits that stands for the proposition that an official's determination to seize what was an allegedly invalid or unconstitutional actions and is entitle into the classic exception for terri's sation well and that is that is why the american cargo case is so important right and given the circumstances of this case where you have the prosecuting attorney making a final determination not to prosecute followed up by his grandson or attempted for the woman to be prosecuted because of the physicians failure to comply with her codes section eighteen deaths six a wage which is which sets forth the basic rules essentially establish reason or reasonable cause for for prosecution and that it was not inappropriate expenditure of further resources he obviously concluded that to the extent that he didn't have probable cause based on what the magistrate court held and the inability to develop any further evidence that the two thousand and eleven prosecution of this requirement and at that point of course dr hern had been granted intervention in the case that occurred in june of two thousand and twelve w have i do your honor and at this point i think i will do precisely that thank you yes or the district court as well as the attorney general's office found that the six o way to requiring that all abortions take place in the hospital violate two supreme court decisions us supreme court decisions from nineteen eighty three and that is because back in nineteen eighty three thirty years ago medical science had progressed so far that free bob dylan to abortions could be slightly performed outside of our hospital women it can be prohibitive for you not have insurance and in idaho like many states medicaid does not however i understand that that is an economic impact with that when it is unnecessary when that if hospital is required if your hospitalization is required doctors and band county idaho will not provide medical abortions there are no doctors providing medical abortions and ben county one doctor myself has asked to and no doctors are providing that is in the record of abortions second trimester or  nothing in the record that a hospital would prevent a doctor if the doctor was not threatened with prosecution under the statute from prescribe being for moallem a doctor performing abortion in the hospital and in fact i am sure that abortions in the emergency situations have been done but not non therapeutic abortions have not been done they're not available in idaho because the doctors will not provide them because there's a statute that puts them at risk for a felony if they do provide those bourses outside the hospital it may please the court if asked the prosecutor as well as his client i mean his a representation the attorney general would can see that not one of these statutes that we're talking about is constitutional but unconstitutional statutes just like unloaded guns can still threaten people that they're pointed toward at least until it's known that the statute is unconstitutional the doctors and the women are not the whole will have these statutes pointed toward the constitutional one constitutional apologize not only did he tell them that the district court in this case that it was it was it was not constitutional it was unconstitutional the legislature like many of my clients never listened to mr smith and they passed it despite knowing that and the district court found that the purpose of that statute because they'd been warned it was unconstitutional was to burden women now of course they didn't have women and doctors both can go to prison for five years if a second trimester abortion is performed outside the hospital second trimester is fourteen weeks if there's an if a doctor or the patient somehow miscalculate the days then the doctor and his patient under six so late subsection two may be sentenced to two five years is what did the legislature has it done in the last fifteen years nothing therefore mr herzog or mr hyde among the county prosecutor have a statue don't the book they have a woman miss mccormick who they believe violated the statute that was the contention in this case that twenty took the pills to have a medical abortion what she so that was the allegation there the legislature just left the statute there well this court has already said that the statute that puts women in jail because they don't do things right you don't  district court of found that to be unconstitutional and the state does not appeal that so what we really have are all of the statutes there's no dispute there on constitutional under the view of my opponent as well as me as well as part of an this court has already ruled so what what is needed here it's needed to figure out who as judge wardlow abortion who can challenge the statutory or a court such as this could finally tell the people of idaho these statutes are like unloaded guns they are not threatening doctors can drugs prescribed by doctors like me and i have described them on numerous occasions not to pregnant women but on numerous occasions i have there's an undisputed for scribing these medications outside the confines of the f d a label according to medical discretion has been held to be statutes that prevent that of hayle been held to be unconstitutional but i would like to remind the court i am not suggesting that my way and what i have said i intend to do when the court has so found as a fact which i believe should be reviewed is clear air that i have that intent but what i intend to do is only necessary to be reviewed for standing purposes please do not conflate it with the merits if i have standing then i can challenge for these statutes and they were not confined to just whether or not we'll do medical abortions but as these statutes affect on any abortions by any women in idaho if they're held to be unconstitutional as the district of and we all have agreed so the issue is do i have article three standing i believe it's been conceded by the other side that i do they  no court has ever looked at the propriety of the way the doctor has suggested he would do it whether it was medically appropriate how could any doctor claim to be medically appropriate when what he wants to do is a fallin the punishment five years in jail it's not medically appropriate by that standard that i should as any doctor should be able to challenge it and then on the substance find out if the statute is constitutional or not whether my plan is appropriate once i've have standing i should not be being judged anymore even more than mccormick's wisdom  abortion i am not some untrained person twenty years of practice in that county if not me  who what abut the mood was midwives cannot in idaho perform abortions and then the reason there are no midwives or doctors other than the perspire being that would like to prescribe this is the foret of being prosecuted doctors have nice lives and i go oh and to step into this mess and become an abortionist to be publicized as an abortion is will ruin their practice there is it is it you don't have people jumping into courts that are doctors and think police you know i really want to commit a felony here and please go you know incur the expense and the trouble to go fight this battle it is then i apologize as i did you go to medical school i went to the university of alabama and i did my internship at l a county sabine close friendship but no i did not i did not know that today after prosecuting mccormick and then losing him from the district court in this court that this did he decide that he had no evidence to prosecute her father and more importantly he would not concede in the district court noted that he would not concede that prosecutions under that statute or unconstitutional he would not can see the illegality or concede that this court had been right when it which in to supply its women completing the abortion in what he refers to is a privacy of their own homes as we developed before the district court  the use of medical abortion in the second trimester is called medical or portions by medical induction it is an extremely complex procedure that requires highly specialized expertise and also requires completion of the abortion in a suitably equipped hospital or cli c in other words dr hearns proposed provider plan is inconsistent with antagonistic to the well being of the class the as an undue burden claim the rights of these patients under is proposed provider plan in the second trimester because again the kinds of medical  abortions that he desires to perform or appropriate is most during the first nine weeks of pregnancy that is consistent with the act but the mere fact that is an academic matter that statute may be unconstitutional does not give this court jurisdiction to make that determination in the absence of dr her but to the extent that he is alleging that denial of access to his proposed his proposed provider plan constitutes an undue burden with respect to second trimester clinic during the early portion of a second trimester abortion was given the change in technology consistent with the interests of the of standing to push wide medications to effect a medical abortion during the second trimester without compliance with protocols of allow that abortion to be to take place in the clinic in the second trimester must be determined with reference to the particular procedure used in akron the courts concluded that use of a clinic for d n a s in the early part the second trimester abortion was medically acceptable because because again changes and improvements in technology the us has the opposite is true here because