i move to the second case this morning which is planned parenthood of indiana kentucky versus the commissioner of indiana part of health fisher thank you your honor may it please the court we appeal the preliminary injunction in this at horsham regulation case to confirm definitively the parties burdens before proceeding to final judgment in that regard the challenge for the court in this case is to reconcile whole women's health with cases approval of informed consent and waiting period requirements as permissible means of persuading women against abortion way to reconcile  altar sound provides more complete information to a woman but you also have acknowledged that women can be given all the same information about fetal development by seeing photographs or right and consider the child's humanity and create upon her baby so is the ultrasound really supplying any more medical information is supplying or increasing an emotional reaction well i think there's there's two components to that i don't want to disclaim that there's any medical information but i do acknowledge that the point of requiring the ultrasound particularly eighteen hours before hand is not merely medical it is part of the effort of the state to persuade the the the mother against abortion just as all of the other information in that list from up much of it anyway is is designed to do that and that's exactly what casey says we can do and what this court and carlyn and a woman's choice said that we are permitted to do so but you see the problem here it seems to me is the burden on a woman for instance a woman in four way who has to drive or hundred miles twice now twice to complete the procedure and and that it's a very burdensome welfare to be on these women frankly are are very very low income women ok well i guess i would respond first by going back to casey harlan and a woman's choice all of which acknowledged that increased driving distances can be can be burdensome but those are not undue burdens in and of themselves now that doesn't mean that there is no opportunity to challenge a law such as this based on that burden it just means that that challenge needs to come after the law has been given a reasonable opportunity to go into effect so that that impact can be measured reasonably and that's that's the holding of a woman's choice and there's nothing in whole women's health that requires lower courts to go back and revisit those kinds of holdings whole women's health really was doing for the first time with respect to laws directed at protecting the mother's health what k c had already done with respect to informed consent so we think this fits squarely within that casey model and there's no reason to think that increased driving distances are more relevant for this kind of early enforcement challenge than they were in any of the other informed consent cases let me explain what i find odd about the arguments i find it odd that the state thinks that the solution to the burdens placed upon women burdens that the state put there should be lessened by having the state micromanage have planned parenthood runs its clinics the state says that planned parenthood should buy moral to sound equipment cheaper and less reliable equipment pay for overtime to have longer work days trained nurses to read the ultrasound move resources from kind of a logical care to abortion care why should it fall upon planned parenthood to l lighten the burden that the state is imposed on a constitutional right to an abortion look we may all agree that abortion should be or we we may not agree or you know that abortion should be illegal right but surely you know the state understands that women have this constitutional right to have an abortion with out all these burn in well yes but of course these are exactly the same points that were brought up you know woman's choice in carlin in k c the idea that the there might be an adaptation by the abortion providers is a reasonable thing to to expect and indeed if we look at the experience of planned parenthood since the indiana in person counseling requirement was finally permitted to go into a force in force in two thousand and three planned parenthood adapted they adapted to that new environment they began permitting in person counseling at health centers not simply at their abortion clinics so that the prediction of of two long trips to the abortion clinic never really came to for a mission now they also adapted their parent well here here at well you know at one point it seems the state is saying that planned parenthood should really allocate it resources from other wellness care so that it can provide more abortion ultrasounds that's a very odd argument for a state that wishes to reduce abortions because taking resources increase abortions i understand the point that you're making i think i've got my response is these are legislative policy judgments and if that in fact happens to be the result of this law that is something the legislature can take into account it's not a reason to second guess what the legislature has done before the law is even permitted a reasonable period of enforcement these are all again the same kinds of arguments that were insufficient to carry the day in a woman's choice in carlin and in cases in all we're seeking here is essentially the same methodological treatment for this law that our informed consent laws receive in a woman's choice so you know i think there is a huge difference here between what the legislature is able to do it on a theoretical level and verses in the context of where it is i've purposefully or purportedly trying to promote the physical health of the woman which is what the whole women's health was about casey spoke entirely in terms of the theoretical justification for informed consent laws it didn't require any kind of proof up front as to what the effect would be it didn't even require any particular demonstration of anything beyond some sort of a commonsense plausible understanding of what advance you know information and waiting periods might have on the woman's decision and so we are well within that tradition when it comes to moving the in the ultrasound from the day of the abortion to eighteen hours in advance so no arguing that rather than having the law enjoying handing a full out that as a temporary measure planned parenthood should just buy ultrasound equipment for its remaining eleven clinic at a cost of twenty five thousand dollars apiece how can that be reasonable what would planned parenthood do with the ultrasound they have the law is permanently enjoying and where are they supposed to get the money now the state well are you now you know i think you cut out just a little bit you are i want to make sure i understand but the the the problem is we can't know the constitutionally relevant facts about this law unless it is permitted to go into effect for a reasonable amount of time there is you know that planned parenthood says it has to spend twenty five thousand dollars on machines well those are because it wants the most optimal machines it can think of it can cover those needs for far less money it doesn't need to buy as many as eleven or however many you suggested it can it can cover the demand into it but i'm not going anywhere where they have and well your honor that the point is they need to make if this law is permitted to go into effect they will have to make some business judgments about what resources to bring to bear on this where is the demand do they really need eleven machines or can they sat satisfy the demand with fewer and can they satisfy the requirements of that i don't suppose hearing is a war well now wait a minute what i but i started out of by saying was that the need for the for the period of enforcement is to permit a collection of the constitutionally relevant facts which is the effect of the law on availability of abortion as enforced and we don't have that time period here we have four months during which that most planned parenthood  heard from nine women who were who are burdened by this law that i think is not a sufficient amount of time oris statistically relevant sample to have any idea of what the impact is likely to be i did want to say something about the district court's observation about what the relevant universe of of women is in this context and i have to confess i'm not entirely sure it's that it's relevant to the constitutional analysis but it really wasn't addressed in the briefs and so i want to just bring to the court's attention the district court in relying on casey or citing case he talked about the need to examine the effect of the law on the part of the women to whom it was relevant are a few here is that this law has a regulatory impact on all women seeking abortions it's not like the spousal notice provision in cases where the regulatory impact was only on women who would not otherwise tell their husbands and you could then measure the impact on that such universe the district court here i think was was of the view that the relevant universe was only women who were low income for i think lack of a better term she may have put it in slightly different terms but i don't think it's fair to say that this law the the the constitutionality of this law can be measured only by its impact on some subgroup of women seeking abortions based only on sex socioeconomic status i think it has to be viewed in the overall context since it is all women who are regulatory impacted by this law so i just wanted to put that out there because i think that that was not something we dressed thoroughly very finally i just want to say that in carlin this court was trying to understand the undue burden standard and the what it came up with was the idea is let's take a look at casey in the informed consent context and see how casey handled the idea of undue burden in the informed consent context and that's all we're asking the court to do here is to go back and look at casey understand that there are this is of a piece with casey and we are just entitle to the same methodological treatment as our other informed consent requirements or reserve the remainder of my time the court casey and whole woman's health require that a court weighs if you related burdens imposed by an abortion regulation and balance that against the state's interest and that's that's precisely what this court alluded to in current and karlen of course the court found although a twenty four hour waiting period requiring two trips was found not to be an undue burden in k c and i'm quoting from the opinion a similar provision in other states abortion statute could well be found to impose an und burden on women in that state depending on the interplay of factors similarly in a woman's choice this court found that there were no facts because it was pre enforcement but again alluded to the fact that facts make the difference whole woman's health specifically noted that increase driving distances do not necessarily shown undue burden but they can when taken together with other factors and this holland said quote when one of fortune regulation compounds the effects of another the aggregate fact of abortion rights must be considered the district court it's your spouse talk what is the maximum distance any mormon has to travel for an ultrasound at one of the planned parenthood centers in indiana that provide the we were using for wayne as an example there are areas a little bit to the north of fort wayne i think fort wayne one way was close to one hundred miles to get to either mribel or mishawaka which is what where the figure came that the district court used to four hundred miles to make the two trips four hundred miles from fort wayne no no to make two trips back and forth a great book two hundred round trip back and forth two times one hundred miles one way yes i'm sorry and what the evidence shows and and the state argues that there should be a reasonable opportunity to collect facts what the law was an effect for a brief period before the plumber injunction and the evidence shows that during that brief period women were not able to get women was a month after the fact and then there was a supplemental affidavit a few weeks prior to be here so there was evidence and the evidence demonstrated that what happened is that the ultrasound appointments were concentrated in a few cents women would fall in and we have statistics showing that a large percentage of women because of the rather brief time here in indiana to obtain an abortion don't find out about their pregnancy don't make arrangements towards the end of that period women called in were told we don't have appointments you can't be seen in time also because of the travel women were not able to arrange for things like childcare they could not get off work they simply could not make the arrangements necessary for for travel we have an affidavit from dr collins who indicated that due to the lower and lower income nature of the majority of planned parenthood's patients the added cost of travel not just the gasoline expense but missing work for two days having to rein in childcare those expenses were sufficient to stop women from being able to get an abortion therefore the fact based analysis that is required by a whole woman's health and casey says what does the state have what is the state's interest and how is that interest served and the issue here is not whether an ultrasound requirement further so the state interest the question is given that there's an ultrasound required for years the question is what benefit to the state's interest is moving that requirement eighteen hours how does that affect the state's interest as the district court noted in whole woman's health the court look to not just what is the regulation in texas but what is the justification for changing the existing regulations and there you run into problems because as judge rover noted there no requirement that women even view the ultrasound most women do not and the evidence is that there's a great deal of decisional certainty among women getting abortions therefore the ultrasound really doesn't do any good in terms of and the only evidence the only evidence the state has to the contrary is one statement in one affidavit from a doctor who said that she had a patient who had obtained an abortion from planned parenthood had not but that if she had had eighteen hours she likely would have and she might have changed her mind the destroy out radically less inserted perform an ultrasound before a medical termination there is evidence that it is not absolutely necessary planned parenthood does it for medical reasons so that they could make sure of fetal embryonic fetal age and also to make sure that it's an interim uterine pregnancy but that does not have to be done until the time of the procedure in fact one of the drawbacks of doing it more than eighteen hours beforehand is that at planned parenthood the doctor's not around when the ultrasound is done the doctor's there at the time of the fortune and the doctor might very well want to do another ultrasound so we have to separate the medical reason from the state's interest in the state's interests is somehow using that to dissuade women and one would think that given how long the ultrasound has been a feature of indiana law in this regard that if the state thought that was a legitimate reason the state would have evidence but we see absolutely no evidence and we see a lot of evidence and burden of bird and this court was quite schimmel if the burden significantly exceed what is necessary to advance the state's interest that is an undue burden and that's exactly what we have here this is not a situation like a woman's choice where there was no evidence in the record where the court criticized the district court for relying on unreliable out of state studies that really did not apply to deanna we know what happened in the month or so after this law was enacted women were not able to obtain abortions women were adversely affected and under the evidence based balancing test that casey and whole woman health require that demonstrates an undue burden and the state would have it differently but we know what the facts pointed to and we know that there is nothing in this record to demonstrate a support for the state's interest even you know how many there are medical reasons other than abortion planned parenthood uses its ultra sound machines for i do not your honor  and it is not part of the record and i do not even know outside of the record so i would not even venture an extra record guess i know that planned parenthood sees both men and women for a full range of reproductive health issues i'm just not sure and that's of course part of the reason why it makes no sense for the state to be trying to reorder how planned parenthood operates it's only seven percent of planned parenthood's patients receive abortions so to say to planned parenthood you should take away from that ninety three of the percent and do x y or z not only makes no sense it's not recognized by the case law there is no case law where a court gets down in the weeds like that for that seven percent that is all for private abortions it's all private yes there ed i think there may be some insurance companies that pay for abortions private insurance i'm not aware of any and that of the women that come to see most of the women that come to planned parenthood are the low it's economic wrong of our society that is correct and that is why when we have when we are factoring in things like travel things like work people think i miss work i have a sick day but of course when you're working at a low wage job a fast food job you don't have sick days the evidence shows that a number the women called in and said they had just started work they weren't able to miss work and therefore they might be able to reorganize their life i sued to make one lengthy look said because that has to do is they're just about ready to give birth and they're going to miss work i mean that doesn't make much sense i do not know what places do that do not provide sick days for people who give birth and i do not know what the context of federal laws to protect a mother in that situation i do know however that there is no requirement that sick days be given to low income jobs and that is as you can see from the record in this case that is a clear impediment to women being able to miss that work to  get an abortion i believe that the evidence shows that one woman it indicated that it had been a year since she had gotten a job and at this point she simply could not handle the lengthy travel to get both the ultrasound and abortion but that would naturally she would be at least several days not being able to work during the birth of the child that's correct and again and i apologize for my it is of of federal law protecting women who who give birth that might very well cover all employers but there's not a similar coverage as i understand it otherwise and remember your honour's the report made factual findings and we're talking about whether those are clearly erroneous and there is little or no evidence to challenge those factual findings let alone to show they are clearly erroneous again this is a case that requires fact based balancing that exactly what the district court did the district court said here's what i think the burdens are here's what i think the benefits are here is why i think the burden is greatly outweigh the benefits that is the textbook definition of under burden and for this reason the invalidating abortion regulations including informed consent regulations on to the undue burden standard spoke in terms of what would amount to a large fraction erected an obstacle for a large fraction of women who would seek an abortion to as i had that there is at most a testimony about nine women who had experienced burdens with based on the time period after this law became effective there is however no confirmation that those women never received abortions there's only i think an assumption that they didn't given the experience they had with planned parenthood beyond that general fischer suppose the  state adds the early old sam requirement and next year the state adds a requirement that the ultrasound be three d and the following year that only doctors can perform the ultrasound each regulation will only impose a minor perhaps incidental increased burden on a woman's right to terminate but why can't a court assess these cumulative burdens as a whole since the cumulative bird is what prevents some woman from exercising her right o constitutional right to have an abortion the answer your honor is that of course a court can do that but not before a reasonable period of enforcement so that proper account can be taken of the impact of the accumulated burdens here indeed what mr f acknowledges is that seven of the nine women who supposedly had these obstacles they learned about and within the first month that the law went into effect and over the remaining two or three or four months of harmony it was that the law was effective really three more where they amount of time in play here where we can meaningfully gauge the impact of this law and that's how we would assess those accumulated birds and i think in terms of the justification for the law there says you know there's no nothing wrong with  legislature operating a theoretical level is casey permitted so putting this requirement eighteen hours ahead of of the abortion may prompt more women to to look at the ultrasound to listen to th to have a reaction to that and to be persuaded against the of or should that's exactly the kind of thing that casey permits states to attempt to order certainly within reasonable bounds in and we're well within that here there's nothing 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