fahmy please the court indiana's prohibition on discriminatory abortion does not intend on the abortion rights as defined by roe in casey properly understood separately the requirement that fetal remains  treated as human remains legitimately advances government interests in respect for the fetus as a human being i'll start with the discriminatory abortion statute under casey the supreme court articulated not once not twice but five times its understanding of the right to abortion that had been defined first in row as the right to bear or be get a child now that defines an abortion right that has to do with a binary choice do i want to child or not it does not extend to the right to choose which child to bear does not extend to a right to discriminate among children that a woman may bear now casey also reinforce the point that the row dimension of personal liberty that was protected by the constitution was the event where the woman despite her best attempts despite the attempting to avoid having a child finds herself  pregnant now is that which is not to say that that's the only circumstance where the right comes into play but it reinforces the point that what we're talking about with throwing casey is this binary choice whether the woman once a child at all vs which child does she want roe itself refuted the idea that a woman may be entitled to have an abortion at whatever time in whatever way and for whatever reason that she chooses further signaling that there are a group there is room for the government to legislation was there a model with or some other state how did this come about well i don't know that there's a model i am aware as we point out or point out in a brief age twenty three that there are several states that have some restriction on discriminatory whether two that i'm aware of that have to do with genetic abnormality in north dakota in louisiana louisiana is only after twenty weeks so it probably doesn't imply implicate the same interests as we have here but most of the others are sex only maybe one or two also have race but i think the larger question in terms of context is the advent of cell free d n a testing which makes the ability to to test if an embryo or fetus for characteristics in a way that's much less dangerous women typically based on age but now we see that the american college of going to college just is recommending it for if not all nearly all women because of the less invasive nature of self d n a testing and given the testimony that we've got in the record from of planned parenthood that fifty percent or more of women who have a fetus with some diagnosis of disability typically down syndrome will will terminate the pregnancy i think this gives rise to a very big concern that permitting such binary choice arguing that only women who decide prior to conception if they are going to obtain an abortion no matter what are protected by the privacy rights stablished in row and reaffirmed  cases they from there say go on to say under the state's theory women who originally welcomed a pregnancy but then determined to have an abortion simply are not protected by the right to a man and abortion no matter circumstances now is that correct summary no it's not i think it's a bit of a character of our position quite frankly the that our position is that the what we are permitted to do is to restrict abortion based on the if the woman just thinks that she wants to have a baby before she becomes pregnant becomes pregnant and then decides for whatever reason excluding the discrimination that we've then she is entitle to have an abortion under relevant case but when you get into this area where it's based on the characteristics of the child and not the choice that i don't want to have a child but i don't want to have this child that's where we think the state's interest arises and certainly goes beyond the limits of the right recognized what you call it what do you do what do you say that  of a pregnancy is that in i'm sorry which can do and then what kind of a pregnancy is it and this is a call at the second lap the first time they really want to baby no they don't want this one right well i think if it's if it's boy i thought i wanted a baby but i don't want this baby that's a discriminatory choice i think if i'm understanding rustic right well that's that's correct that that's the problem of course that i have and this mother background where i from from for about thirty five years my wife isn't involved with a pregnancy help center you know it's thirty places and twelve states but all of that is based on the premise that there is an absolute right to have an abortion up to twenty weeks and they it's all based on choice to encourage women to choose life which is it seems case even says that's ok but you can not have the pervasive in and low risk testing that we have today for characteristics of the fetus that they were never presented with this type of scenario it indeed that's where roe said this is not absolute it left that door open on reason it's particularly that so i think that there is that wiggle room that we've got that really has never been an issue for site confront the decision that the supreme court that really has to do that can we really wind around and get to the point where it seems to be an absolute right well know i think the supreme court has already said it's not an absolute right and i think what the supreme court only the supreme court can do is extend the right to cover this type of situation where it's discriminatory based on the characteristics of the minute that do expand the mandate we want to go that's right that's our view is that they have not gone this far they have left open and certainly raw and based on the the sort of concurring rhetoric in k c that this is a limited right the right to choose whether to have a child and it is not absolute in does not apply anywhere what is the term whatever time whatever way poured in for whatever reason which wrote this claim so we think the court hasn't gone as far as planned parenthood needs them to go to in this case and that only the court can go that far fetus stuff you know ok whatever people are comfortable with but a person pregnant woman pregnant with a baby or fetus seventeen weeks there's an awful lot going on there in an ultrasound for example will define that pretty clearly and in the experience of the women's care center when a woman does see the the ultrasound a lot of times she does change her mind and that's one of the things i'm looking at because it seems to me the woman that has that perfectly healthy pregnancy at seventeen or eighteen weeks has an absolute right to terminate it even though there's nothing wrong with it and then when we get to this case where we're talking about there are things wrong you know i got here i go again my wife and i are godparents or her brothers youngest child who has down syndrome if he's alive a great example but there again there's an absolute right the way we presume it and i'm struggling with that because it i know an awful lot about this issue and have always gone on to not like it but nevertheless there's an absolute right and how do you overcome that well i think if the court concludes that roe and casey provide that absolute right that extends this far we don't know so we have to look at the posts casey cases do we see in any of those cases room for the kind of analysis that would wo permit the interpretation you would think it's another words have haven't most of the cases seem to speak about that first trimester decision as one where not unlimited for the kind of analysis you propose i'm not sure that why we would expect any of the post casey cases to shed light on this i mean casey is important not just because it's an abortion case because it specifically grappled once again with the core right to child but the post casey cases including all women's health didn't really have to get into the fundamental nature and whether this right exists it's a question there of what sort of peripheral regulations the state may bring to bear so i don't think we would expect that now i think in terms of lower court cases what we've seen in the briefing are circumstances where the the statutes have been invalidated because they go right after the this binary choice you know is it based on you know is for  example in the mccormick case for twenty fifteen the ninth circuit you know trying to redefine the time in which the the abortion is permissible set of viability that it's you know a certain time a fixed time frame other cases you know  typically you know get into the same issue so non emergency abortions that sort of thing cases there or statutes that get into the right itself the core right identified by roman case in this binary choice i don't want to child i do want to child which way is we don't have cases that get into an abortion decision based on the characteristics of the child and i think that's that's the critical distinction if one would assume that the state interest exists in this case how can the inquiry be me into the decision well i think the principle if you will enforcement mechanism here really is the that it brings up the first amendment issue in the case which is the advisory  that and if that was her main motivation she will think twice now that the there is a reporting requirement that if it is known that there's a diagnosis of disability it has to go on that though the terminations report but it doesn't you know we don't see that as a mandatory kind of invasive inquiry it isn't going to be known in every circumstance and i think you know the woman's going to have time to reflect on her choice and i think the make that the main thought here is if we can prohibit it in advice to women it's and one of the cities there's a woman who runs the women's cure center and if she if a woman who's pregnant with even an unwanted pregnancy and it gets in the door and in counseling and stuff when they consensual it's not forced it's not government it has all of the trappings of a successful in coding within you one rescue or something but it's not forced and it's twenty four hour waiting period eighteen is that correct nineteen eighteen is eighteen hours eighteen hours well what do you do in that eighteen hours if there were a way to i guess it's have to say persuaded given a total opportunity to get a free ultrasound in bloomington and indianapolis wins your senate right next door you know they'd have to schedule and do some other things and maybe that wouldn't work but i'm just trying to think of a way to put a woman in front of a place where she can make her best choice by hearing the other side of somebody be an advocate for the baby well we're certainly trying on the on the ultrasound and as you want to plan it out that's a subject of a different case and that's that's that's part of the overall kind what same type you're talking about she's discovered she's either got a down syndrome baby or just might have bifida or you know like one of my nieces baby child children as half a heart but they managed to put it together she had to be in the right place in milwaukee where they had the expertise to do it she's no eleven years old but if otherwise would have died in about four days so the macis to to put the person in front to give her a and equal opportunity to know that there is something on there's an alternative to the abortion that may be the right thing to do the counsel the required counseling includes alternatives to abortion that the list of material that the clinic and the physician  designate must discuss with the woman in some form or fashion includes alternatives to abortion and this would be added to that it would be an advisory essentially that in abortion for these reasons it is illegal now there is no compulsion that the woman undergo any kind of testing to detect whether there is whether there is some sort of feel anomaly and so it's not as if we are trying to you know figure out with each each baby what's going on and then force the woman to sort of confront the woman is i don't know in that situation see this is also and then mandate on the doctor to i don't want to be cynical but if the person who'd d text it's not going to be the abortion clinic who detection got this malady right would it be something for them to say if you want an abortion don't tell the doctor why you wanted well look i'm not you  know i'm not an expert on medical ethics and i don't think but i think it's important that especially given the viewpoints of some of the meek in this case the point point exactly what your honour's just said which is that we're talking about different settings where the you know the detection and the counseling on the on the genetic counseling side is going to come up versus where the abortion comes now you know it was planned parenthood is not restricted to the items in the informed consent statute in terms of what they discuss with women so they have their own ability to bring their own viewpoints and to bring their own ways of dealing with with each individual patient but under this law and someone goes into the abortion clinic and goes the abortion doctor  stay with down syndrome she just simply doesn't want to be has down syndrome and the doctor would say a way to tell me that he was just walking in there he said i wanted abortion and they would i guess you're very abortion and that's that's what it's this is yes these questions because obviously this is a very challenging probably everybody in this room has an opinion on abortion and it's it's divided our country for a long to just give an opportunity for the woman to have an alternative in the or to sound has been pretty remarkable when you see that image in the beating heart and everything a lot of young women don't even realize that's what's going on and once they see that say wow and then there are a lot of them come back and not the baby and they think you know that's the son he said that's my so whatever just from a kid from the point of view but we have the supreme court and that's what we and if we are then we you know we should prevail in this if we're not and i don't i don't know that we've got civility gen john fisher looking at the language of thirteen thirty seven are we to read into that the obligation of the abortion provider to make these inquiries i mean to start the dialogue or you know what what is the command of thirteen thirty seven no i don't think that there's there is an obligation to to initiate that conversation in terms of the report that has to be made it's phrased in terms of whether the the fetus has been diagnosed or has a potential for diagnosis and now again the report isn't meant to be the be all end all of what's in the woman's mind but that reflects the kind of hard and you know fast side of what the physician has to report but i don't see in there any mandate that the physician initiated discussion so if a woman goes into  clinic for an abortion if everyone remained silent those thirteen thirty seven have no effect no i don't think it has no effect again i think with the one thing the physician cannot do is is is is not give the advisory you have to give the advisory that the state for have its discriminatory portion you know or it's phrase and i think the hope is it even if nothing else about the potential for diagnosis or for diagnosis is set so instead and so the medical provider call for response from a woman right right and the hope is that nonetheless it will happen and even in the admitting privileges case we've had a couple of years ago one of the main issues with sound and from my point of view in that case it it was huge benefit first of all women noted she's pregnant and not going to get paper abortion and she's not pregnant and then she would also see what the situation is and have a doctor this is on admitting privileges a doctor who will follow her if she's got a problem and not just she's out the door and see you can see another side of our or go you know we start with prenatal and all of the you know baby clothes and better parenting classes and a whole lot of other things that go on with the word we're point of view but that's all i'm looking at is when it gets in that in the abortion clinic you know explore that with them you know just to know exactly what the procedure is and what they do with it all to sound do they let the women see back then i used to say turn the screen  they see and hear the heartbeat and realize what is actually going on before they go ahead with the abortion and that's part of our matrix of laws that that is supposed to happen and again the timing of it is subject to two one of the cases currently before the court  and i don't see that there's the course never held that those two things are the same and just because there is a fourteenth amendment protection for the for the for the fetus doesn't mean the state can't insist on signify treatment as a human being even even the supreme court to consolidat know because it's her decision if she wants to do something else with the remains yes yes yes ok and so then then the other thing is there's an obligation for the doctor to identify all and make sure he's got all the pieces well and that's i think standard practice anyway that the any observation that's necessary is is is quite obvious and bears out the requirement that this is a human being that steak and required to be treated with respect after the abortion overs are there major  thank you may please the court it is hard to imagine an area of the law that is more certain than the absolute right of a woman to obtain an abortion provider bill and the law here says that we are challenged seeks to ignore that clear law casey reaffirmed as a central principle of roe that before viability the state's interests are not strong enough to support a prohibition on abortion or imposition of substantial o casey further held that and i'm quoting a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability now it is true of course and both ro of them crazy cases of stress this that the state does have an interest in protecting potential life but casey says that the means chosen by the state to further to interest and potential life must be calculated to inform the woman's choice as judge mannion noted not to hinder what here of course we're talking about a prohibition we're not talking hundreds we're talking about absolute prohibition and the binary choice theory has no place here the woman has an absolute right as part of her privacy interests the whole point about privacy we are told in casey is that the privacy erects are ground into which the state may not enter period and of course here the state is seeking to do exactly that the state is presuming to be able to examine the reasons why a woman is seeking a preview of deliberation and then saying well we're sorry those reasons aren't good enough we're not writing on a clean that's correct there are i believe seven states maybe eight that have that it's requirement if you challenge any of those and the reason they have not been challenging those states your honor is that i don't know if any of those abortions ever occur i don't know if anyone has standing the reason we're here today challenging all these bands is that at least for the gender and the race ban which we have no evidence is going on the court has to reach the constitutionality that ban because of the first amendment claim because remember we all agree here that if it is unconstitutional to have that ban it's unconstitutional to require planned parenthood can or better than i would i would guess that those bands have not been challenged because they're simply it doesn't come up now there was a challenge that was dismissed on standing grounds and of course there was an illinois case in the seventy's i believe which we cite where as part of a settlement it was agreed that not to like my own very good friend who also has a down syndrome child and it's when you see the child alive and kickin so to speak and how the impact he has on other and my wife was forty two and he was born and he's perfectly healthy and wonderful and everything's great but you know they can understand the dilemma when a parent is notified that there's something wrong yes and it's scary it's in shaky yes and i think the state is completely well within its rights to do everything possible to inform and educate the woman to inform the choice but that ultimately the supreme court tells us the choice is left to the woman in consultation with her doctor of course and that's the line that that casey draws casey and roe and whole woman's health don't leave any room for the state to come up with a new reason to supplant the woman's right in the first trimester tain abortion because katie says no matter what the interest are we considered all the interests they simply are not strong enough to overcome the woman's absolute right in the first trimester but casey does stress that the state can attempt to advance its interests in fetal life by all sorts of means calculated to inform the woman's choice but not to hinder the this and that's you know that's a language that they sort of rest on they do look at ok what can they do to persuade and i go back to the ultrasound yes because i think client patient see and hear yes indiana law requires that all women obtain be given ultrasound also listening to heart unless the woman at the client's in writing and she has to affirmative they say no exactly i don't want to see they are here that is actually and the other a little other litigation we have we actually have the percentages of that and i frankly don't remember i apologize well the thing and course you may not know but too but i think in indiana i believe there are three clinics is that right there are bloomington in annapolis and hammond well planned or has three clinics that perform surgical abortion and a fourth clinic but obviously this is a you know it's a it's a major issue and it's in every campaign all every politician has to say one of the very what they're going to do it isn't a reason i quit but it's a difficult issue but the supreme court i think has made this particular case or this aspect the case simple first trimester the woman has an absolute right it's part of the privacy that a woman has a period  state's interest clearly to preserve potential life exists but the state could only exercise that interest by informing the woman not by director wrecked in this type of probation will course you know  my personal stuff that is my one sister in law had a child at twenty four months and it lived one year i'm sorry one month she had another one when twenty eight months and very expensive that he's six foot three so you know you can look at both of those and that those are very difficult pregnancy yet it is so when you talk about viability you know we all recognize viability had that aspect of it too i'm not denying that this is a nice the subject well that's correct and science is doing things in this area but of course planned parenthood limits its abortions to prior to fourteen weeks so there's no question that that fetuses  not viable and all the discussion that we're having here involves a woman's private choice in consultation with the physicians something the state has no ability or no right to enter the court also properly concluded that the tissue disposition requirements violate due process this is well level rational basis scrutiny of course the question is are we talking about something guys rationally related to legitimate cremation but the fetus is not a human being the supreme court in roe made it clear that the unborn have never been recognized as persons this court and co held that the unborn are not persons and in fact the supreme court in akron citing back to roe stress that the state may have not adopted one theory of when life begins the state has adopted a theory of when life begins and has built a statutory e that construct but that is not a legitimate governmental interest because the state cannot declare when life begins who do they call them if it's not an unborn person i mean well i mean they're saying it's a human being they're saying that when this tissue is extract the year through at abortion or through a miscarriage it has to be treated it has to be buried it has to be cremated and the reason for it saying that is it is claiming that this was a person and the supreme court has said no that is not a choice that the government can make that is a firy and the state and the government cannot presume and impose that theory on individuals and then the court the state says well we are saying this is human life but by the way if the woman wants to she can take the tissue and dispose of it the way she wants and if you accumulate the tissue at a clinic you can cremate it all together so on the one hand the state is saying this is human life and the other hand it's not treating it as human life which is not rational so what happened would can you call it that they could still have the remains potential life but but when that life leaves that tissue and we're talking about tissue when that life leaves that tissue it is becomes a byproduct because most of them have a beating heart well again i am not going to i think the record doesn't well the mistake was that they called it a person's now calling you had some pre born summary of the the mistake your honor is is characterizing that as a human being that was alive and it never was and the court objected to the abortion procedure and gonzales because it involved the partial birth of a a child before the abortion the court had no problems with fetuses of the same development being aborted within the womb or the uterus the the court was not making any statement as to the fact that the remains were life the state was the court was objecting to this one method of abortion but here as i said on the one hand you have the state saying we proclaim these are human beings but by the way if the woman wants to take it home and dispose of it any way she fits she sees that that's fine but that's not how we treat the six human beings we don't we're not allowed to take a deceased human being from a facility and dispose of it as we see fit we're not allowed to cremate deceased human beings together we treat them with dignity and respect because of what they were when they were alive  statute on that edifice and therefore the district court should be a from and that's all i'm saying is it is and calling it a human being what do you call it and again your honor i did this it's different then in a disease gall bladder for example you know there's something else you take out that isn't that kidney or something that has to be removed because it's damaged or something so and and when it comes to the  it costs a few bucks to zero dollars or something to do that extra effort i don't know this case or whatever it is it's a big deal or if we are not remaining this is an undue burden because a cost your honor we are we are claiming that this is  rational because it's got to be that in your case yes i'm sorry it's got to be irrational yes what is it we can see it at this point we are claiming this violates due process low level scrutiny that's not rationally related to a legitimate government interest and we are claiming of course that the court found that there is need of a legitimate government interest nor is there rationale thank you very much thank you your honor just a couple of points i think you're going back to roe for the understanding of what's happening you know in the womb part of viability is ignores all of the ballots that we've learned since then we know that as i go to the human organism with characteristic human parts and human pattern of developmental behavior namely an organization towards the production of a church human body in the supreme court is recognized as much in gonzales and  is i think an unusual thing to say that we are somehow in the land of rational basis restricted by what is going on in the law of abortion what pinned it would do would the remains  life you know when does life begin versus human being and human being is meant to be more so you know strictly scientific and less with less without sort of moral gloss on it but that in terms of how we treat the remains that is you know becomes irrelevant to about abortion because there are some separate mechanism in the security and i don't like to think about it but there are a lot of things happening in technology and medicine etc that things could viability may be a lot sooner but we're not there and obviously this is this is a perplexing situation i just was just looking for something else maybe the name is calling it a person is it can be substituted so that it is the same time disposal or how you treat the remains would be ok in a rational basis i don't think we have to get hung up on what we call i think the police power is sufficiently broad that we can take account of differences among you know even that which we don't ascribe some moral sense to i mean we can we can prescribe how we demolish historically relevant buildings so that there is you know the story the history of his respect we can do all kinds of things in the name of public sensibility within the police power so i wouldn't get hung up on exactly the terminology that we use here this is something that's well within the state's authority now the court judge you mentioned  little scary about thinking about some of those developments in medicine that seemed like science fiction not too long ago but i want to leave the court with something that's not quite so scary which is that the cute baby referred to as the new gerber baby