thank you chief judge carson pleased to court jim davis arguing for the defendants in solace the supreme court held that banning one method of abortion was not an undue burden on a woman's right to terminate her pregnancy when there was another method where she could still medical disagreement on whether that other method presents substantial risk to the woman let me ask you this you agree that if if there was no safe and effective way to cause fatal night before d n a that this law would be unconstitutional yes ok and you agree if you just outlaw d n a period that be unconstitutional yes because at this point in time that would eliminate so we're all up on those subjects where and i'm focused on the substantial burden because of the greater risk or lack of greater risk right that's correct ok that's correct in this our contention that were there was plenty of medical testimony and gonzales that the band method partial birth abortion was quicker safer and presented less risk to the woman but the supreme court held that because there is at least medical disagreement on those issues that congress had room to act what was the district court fact findings and the district court fact finding i know just as gonzales said in her dissent that the fact finding was that there was a near consensus that at least in some we don't we don't have legislative history in alabama and there's no findings in the statute but what we can do is know that the state interests that we're asserting here are the same state interest that were asserting in gonzales and those interest or protection  questions that he asked what we were we continued that the district court made a legal error is he ruled that one side of this medical debate was right and that one side of the medical debate was wrong but we think on a given solace the right question is simply genuine medical disagreement on these issues because the court noted in gonzales that legislatures enjoy wide discretion to pass legislation in areas where there is medical and scientific going to the findings of fact in fact what judge thompson found was that not that once i was right and one side was wrong but that your expert more credible and so that the evidence before the court with regard to your expert talkin about how many procedures would need to be done in order for a doctor to be qualified and the other he found the he did not give your experts credibility so it wasn't necessarily the said once i was wrong and once i was right when he made the finding of fact he said the evidence he put forth was not credible isn't that a slight isn't that a distinction it would be judged abrams when we read the discourse opinion was not the film that judge big was completely without credibility but that he was entitled to less weight because he practiced in a different setting but we think we presented that wasn't the totality of his finding was that i mean he made specific findings on various findings with regard to the fact that the expert was in an academic static setting as opposed to a clinical setting with regard to what had been observed with regard to the fact that a lot of the findings were made based on paper and the viability of the actual studies because they weren't done in a clinical setting as opposed they want to and it as an actual study but in fact were just didn't know what he was talking one and that suggesting that but it's also but the bottom line i am asking is before we jump to understand your gonzalez argument you're under the impression that because that that gonzalez says that he doesn't really even get to make those fines but assuming we have we are we don't find i guess to go back to just kinds of original question is there a basis to find his findings of fact clearly erroneous to the extent that judge thompson found that there is a medical consensus against us we do think that would be clearly erroneous he found  instead that we read his findings to find that while there was medical disagreement that he believed one side more than the other here your argument pretty much rests on the act is not invalid on its face when there's uncertainty over whether the bar procedures ever it's necessary yes that's it but but what's the critical condition there we think the act is not invalid what's the next three words on his face it's invalid as applied to them but we contended a proper as applied challenge chief judge cards would be brought by a particular woman or particular class of women but every i can't recall dan fourth but at least every other abortion decision center oh has been brought up physicians and clinics oh yes we're not saying that women had to be the plaintiffs it could be brought by clinics or doctors on behalf of their patients but here but they can only bring facial challenges i think they could bring in as applied challenge chief judge garzon say well that is one that's what we ended up with here and as applied challenge what we contend is that it should be as applied to for example obese women ok judge thompson hailed that one of the reasons we found that one method of inducing field demise was in applicable jocks and is it may not work for particularly obese women but the injunction isn't limited to obese women i be a facial challenge right it was it was brought as a facial challenge in then as applied challenge and that's why they got to bring it a second time but then the supreme court granted facial and you're saying there was no medical uncertain in heller staff there was medical uncertainty on a different issue we think that heller stead is distinguishable because the issue there was whether these admitting privileges in fact promoted health of women that was what the state of texas argued was the reason behind their all this what we argued was the reason behind a similar or alabama pass texas didn't convince anybody and we didn't neither in the courts just found no there's no nexus between the interest you're asserting and the regulation that that you're defending and here the interest that were asserting of the same interests that were recogniz obvious but we think judge thompson would be the district courts he's we were the district court made a legal error one of the ways was in applying the differences between the facial as applied challenge because his reasoning as we read it is that these methods for inducing fetal demise had to be available for one hundred percent of women and that we don't think is proper in a facial challenge the evidence is that some of these methods according to plaintiffs a untested before a certain stage in pregnancy so what we think if that was the fact finding that the injunction should have been limited to certain stages of pregnancy not to specific clinics or that it may not work for a particular class of women such women who were all morbidly obese or who had fibroids  or that some women who had difficulty traveling back a second day so we think the proper relief is not facial relief so you think they can't court can't enter as applied challenge as applied  relief to clinics are physicians it has to be patient about patients we think that would be far more appropriate because a no but more not tama much more appropriate we're talking about whether the district court can enter as applied relief to a clinic our physician as opposed to a patient we don't we don't claim that the district courts is without that authority we claim that the evidence to support it and support a blanket when does the district court have that  argue that would the district court has authority to enter the relief thinks appropriate if it's supported by the evidence and here the evidence did not suggest that all women would have trouble so the only time the district court can enter as applied relief as to a clinic is when there would be a right to facial and validity as to all women to all women who would go to that clinic and seek an abortion in that clinic so well so what's the difference between  the evidence more than suggested then most women would be subjected to greater medical risk i mean did anybody testify know there's no medical risk as to this method no every single one of them they'd be greater medical risk including your expert did not they did and in consolidate still was in your consensus that the alternative procedure standard d n a was riskier than the ban procedure but the supreme court allowed that to go through and said that medical disagreement was reason to let congress you can't tell that from the supreme court's opinion that d n a was riskier than partial birth abortion they they did cite the testimony that there is that at least there was some doctors the court acknowledged that at least some doctors thought that the alternative procedure was riskier than the band procedure and we think that makes our case like gonzales one of the methods used  transaction our expert testified that that would not involve significantly greater risk i don't think anybody always a specific testimony that standard d n a without required would be riskier than and d n a with fatal it's required that's what we're talking about here yes there was testimony that from from plaintiffs experts and  plaintiffs themselves testified that they thought the methods that we suggest would be a way to induce fetal demise would raise the risk for women no i'm asking the converse of that who testified that it wouldn't raise the risk for women nobody rule that congress was in about i'm sorry i'm asking you where the uncertainty point me to the testimony that raises the uncertainty in this case that if they killed him as a requirement does raises the risk uncertainty about that whose testimony and i'm not sure it is my fault judge i'm still not sure i'm understanding your question but we're position is there's medical uncertainty about whether the fetal demasi requirement is riskier mass requirement what is the specific evidence indicating that we let me rephrase and say we think there's at least medical uncertainty as to whether these procedures provide an acceptable level of risk anytime you're arguments hard to acquire because you keep moving it so there's no uncertainty that it raises the risk some correct not even know in fact if if judge thompson had found that as a fact from medical testimony on both sides that it didn't raise the risk some that would be clearly erroneous wouldn't yes ok because anytime there's an additional procedure of any sort there is some increase in risk we did not intend to dispute that but we would point you to ten o'clock out you did because and maybe i'm having a hard time pinning down your argument but i thought you argued that this was because there was evidence that this procedure actually was less risky just as the partial birth abortion there was some testimony and gonzales but that was less risky then the standard d n a and the any and i'm wrong that's not your argument and we're not continuing that the risks are absolutely equal or that there's any testimony that  inducing fetal demise would provide less risk we will say though i will say there was some there were some references in some studies that some doctors believe that using jackson for example to get it to terminate a fetus life might soften the body and make the abortion easier but we're not rule on that i would point you to testimony from dr davis plaintiff's expert and she said that in giving a rail on the partial birth abortion ban they induce fetal demise and they do so through different methods some of the ones that were asserting here such as potassium chloride instead enjoy life stage that's in the second trimester eighteen or after eighteen after well but it's not what we're talking about here but in a facial challenge judge you know we're not facially challenges the relevant affect the people who are this applies to fifteen to eighteen weeks does it not that's what it has the impact on course it applies to more than that but but i guess it applies to less than that if anybody used it for that which they don't generally but the rub time period and relevant group are population of women affected are the ones eight fifteen to eighteen weeks are they not because fifteen to twenty judges is all stage all sick to mr all eighty percent of the women who are would be that are at least eighty percent of the women who are getting these procedures are between fifteen and eighteen weeks the majority the vast majority correct yes for more second trimester abortions are performed before eighteen weeks than after but what dr davis testified is that doctors or inducing f demise to get around the partial birth abortion ban even acknowledging that the procedures involve some additional risk and no benefit to the woman but the doctors are still doing it because they're complying with the law and we contend t that is what doctors would do in this case as well but didn't dr davis also testify that there are certain when and at believe it's the first procedure that they want they stopped she stopped doing it because it was too dangerous that potassium chloride injected into the umbilical cord for example but there's no question that for example planned parenthood for years required clinics to or for some period of time require clinics to use the jackson injection they don't anymore but they still allow it and that involves the same steps and procedures as an injection and when i say judge carnes that there would be some additional risk should with there's some risk with an ejection but that's not vastly expanding the risk involved to a woman it's not that five to fifteen percent failure right i thought it was five to ten it may be five to fifteen but yes di jackson may not work every time but we don't know on a facial challenge why the alternatives have to work state just say what the heck i'll close enough for government work or sorry about all those other folks no judge we don't mean to say that in there or if in a particular case it would be difficult for a woman to terminate for a doctor to terminate a pregnancy with the jocks and to them testified they couldn't found the court had difficulty yes and we don't understand why o b g y n would not be able to find an issue practical question this is an argumentative question i'm just wondered on potassium chloride there was a dispute about how many procedures it would take to try and your witness said ten to twenty potassium chloride injections would suffice to get them capable of doing it is what happened to the woman in those ten to twenty cases while he's learning we think that in those cases that a doctor would be observing and doing it with another doctor  if they'd never done to miss the needle you missed the needle it's a hazard in a neurosurgery and what i understand about why the needle asked to go it would be a hazard here and if you're watching see if some other doctors watching you percent of cases and there was some breakthrough in the state said the breakthrough method is far more humane we mandate use than the fact that it was used in eighty percent of the cases of the time that state imposed that requirement and just as widely available that in part yes i think the facts may be just out of the fact that is the fact that it's predominant method just reflects the underlying facts that we can get at other ways about whether it's just as safe and just as effective and available right exactly around or as the supreme court recognized in dan forth which was the first case to examine this issue the prevalence of the method reflects what the medical community of course has determined to be the most safe and feasible and effective and widely available method and that's exactly what the case is here d n a remains used in over ninety five percent of cases nationwide of course in alabama in the outpatient clinics in one hundred per cent of cases after fifteen weeks and that remains the case today that if a ban on d an e would have an undue burden just as it would have instead in berg and gonzales because it would have the effect of prohibiting the most commonly used and generally accepted procedure your honor the state relies on a misreading of gonzales to really argue for a different result here insall as they are ignoring the context of that decision and really ignoring the threshold holding that gonzales made which was first to ask whether or not the law at issue was banning d n e because as here d n e was the most commonly used and generally accepted method of performing an abortion at that time and it was only after deciding that the federal partial birth abortion ban did not reach d n e that it even went on to ask the question of whether the ban on the rarely used method could be upheld because of the availability of alternatives and again to correct what my colleague said before in fact gonzales the evidence and solace and the supreme court decision and solace is incredibly clear that the evidence was undisputed that for every woman d n e was a safe and acceptable method to solve that dispute and bring some somewhere where where do you get your dispute that dealing with safety but there was dispute between comprehensive detailed legislative fact findings which of course we do not have here and comprehensive detail district court fact findings over the safety of that alternative for a subset of women whether it was better whether it was preferable for them but given that nobody disputed that the commonly used and generally accepted d n e method was safe for all women the court was unwilling to strike that law on it quite different circumstance here where it is the commonly used and generally accepted standard and predominant method that the state is seeking to ban and instead is seeking to impose on women let me tell you one thing that kind of stood out to me from judge thompson's he appeared to be unwilling even to concede that the state had a valid interest does i don't i don't sense that same reluctance in your brief you argue that ok you know if you can do this in a safe and effective manner that's a valid interest if maybe not one you'd agree with the maybe one on one you would pass judgement on but it's a balance state interest do you contest that we do not contest that in the abstract of course the supreme court i'm not talking about the abstract i'm just talking about as a factual matter i don't know if you can have a factual finding about a state interest but that is a valid state interest if it could be done without a substantial burden if it can be if the interest can be advanced in a constitutionally permissible manner well of course but you have to have a valid state interest you have to have been ok and that's all we i'm talking about judge thompson would not even concede that he simply said assuming for present purposes what's the possible justification for that what he said your honor i believe is that he assumed given that there were no legislative fact finding so of course there was no assertion of what the state's interest in passing this band  was he was going to assume give them the benefit of the doubt that they were motivated by the interest that was recognized by legit as legitimate in gonzales well there are no legislative fact findings in most state legislation that i've seen and in virtually non always the end they don't contest as i understand but i was curious what's the evidence three basis of no pain before twenty nine weeks with their testimony about that there was some testimony about that your honor in this case of course because it wasn't contested and wasn't interested that the state was even asserting an argument they're making it wasn't extensive but it does have to do with development of the fetal cortex and until certain developmental advancements are in place pain would not even be a biological you're welcome i would also like to address in addition to i think the miss reliance on bin solace and all of the cases that preceded it there has also been a misunderstanding of the district court's  clearly well supported and findings in this case that were sensually based on an undisputed evidentiary record there is essentially no debate here that the methods that the state is proposing are not only unfeasible and ineffective to rely on to circumvent a criminal ban but that they also impose risks in fact the state's own witness said that did jocks in which is by far if anybody is to use demise it is the easiest to use said that that imposes risks on unreasonable risks on every woman to whom it is subjected and it is unreasonable to expect a physician to administer that to the his patients and that is not even counting the fact that before eighteen weeks it is untested and an experimental procedure and as in your statement three sentences before reminded me of something there is statements throughout the district court opinion that it and  think also in your brief that the state in failed to prove that fatal to a mass offered any medical benefit there's no requirement that the state if it doesn't impose a substantial burden can't require a particular method unless it has a plus medical benefit suppose it's a stipulation and i know it will never happen but suppose the stipulation is this is exactly as safe as the other one now one tenth of a percent either way different the state doesn't have to show a medical benefit your honor i think it would depend because i think one aspect of the conclusion that a additional method doesn't impose doesn't have a benefit is also what is it forcing the woman to undergo so here the forcing a woman if i'm if i'm understanding if we're talking about the difference between the abortion procedures then i think i do agree if we are talking about requiring additional a woman to undergo additional medical procedures merely as a precondition to exercise a constitutional right i think that raises more bodily integrity question that would also just feed into that where there's a substantial burden you can have a substantial burden that doesn't relate to a medical risk is my whole point and the fact that all of the things being equal the mere incursion own choice per se if there's not a substantial burden with the choice that the legislature makes as i read it so far has not been outlawed has not been ruled unconstitutional it is when the state's choice imposes a substantial burden on the woman's choice preval bill is that there's a constitutional problem now am i wrong about that no you are correct your honor i think if i if i understand the statement that yes what is unconstitutional is to impose the undue burden on the woman's ability to exercise her right to abortion of course that often coincides with what is generally practiced in the medical community because what the medical community practices is what's best for their patients but yes the right is of the woman not in what's available which ties into the burden of getting something that's now only well exactly around or which is of course the situation in danforth where the alternative that the state of missouri was proposing there was not only experimental but was simply not available in the state of missouri and that is relevant to the ask is this about university of alabama birmingham they rarely do abortions but they are subject to this law so the law that read it i should know but the law doesn't specifically restrictions to how patients no it is to the performance of the procedure itself did you know he explained when he performed days it is sometimes performed he did testify that that procedure is some of the issues about the record in addition to saying there is no debate among any of the experts about the risks and no debate about the and feasibility and no debate that these are not reliable and effective methods it very much mis characterize dr davis the plaintiff's expert testimony on the point of using demise dr davis testified that in the wake of the partial birth abortion ban she did a way to try to attempt to comply with that or to demonstrate compliance with that decision she did attempt to k c l injections and abandon that because of the threats to her pains to me that's a safe that's a way she was then says it is not and that is exactly how she does comply today with the partial birth abortion ban and how most doctors comply i think in the wake of the decision because of the way the supreme court had construed that statute there was fear about how you could demonstrate that that was never your intent to perform the banned procedure and so that was something that people explored as a way of demonstrating compliance but of course she attempted k c l abandon that attempted to jock's and abandoned that what she does today is actually when she performs the purse the partial birth abortion procedure the actual procedure the rarely used variation that was banned in that is when she attempts fetal demise so as to be able to be in compliance with that and those are only for patients who are very far along in pregnancy for whom she does believe the band procedure would be safer and even then that's after three days dilation she is able to access the cord and inject it with potassium chloride it's an entirely different context and even then if it doesn't work which it doesn't always work she performs the standard d n e and that is the option that it would of course not be available to any physician in alabama because this law prescribes that procedure and in fact there is nowhere in this country that anybody even the minority of physicians who are currently attempting demise nowhere are they doing so without the ability to perform a standard d n e if it is difficult or impossible to administer or if it simply doesn't work and there's nowhere where they're facing a criminal ban if they were to perform lawfully and safely complete the abortion procedure what about dr parker's testimony that his da lation procedure often kills the fetus he observed your honor that sometimes the method of dilation that used he believed resulted in fetal demise i think that hardly amounts to anything more than an anecdotal observation and if anything it demonstrates that even that doesn't work every single time and of course at that point he needs to be able to perform a deanie to lawfully and safely complete the procedure so although i think that that would certainly fall under what it would be considered experimental or not commonly used or generally accepted to use the gonzalez language he did testify that even then it doesn't work all the time and would still need to be able to perform a standard uni to continue to complete the procedure here argument doesn't rest heavily on the medical ethics from the us a medical ethics argument contention does i think that as part of that yes that is part of the factual i think argument i think they're the in effectiveness and unfeasible ity of relying on these methods as a way to circumvent a criminal ban and then in terms of the risks and experimentation that it would require doctors to impose on women that is unethical and that is also an commonly would used to jackson nobody's using it before eighteen weeks when eighty percent of abortions are taking place and as we know potassium chloride is really only the province of specialists who perform it in hospi and then risky before but not after eighteen weeks it's an important position and it's experimental and untested and unstudied before eighteen weeks you wouldn't know the dosage you wouldn't know how long it would take you wouldn't know if th side effects would be different because you perhaps have to incur understand that argument has been used after but not before law have a significant amount of time number of times after but not before but still you can use it if it increases the risk as a matter of medical ethics not constitutional law if it increases the risk and offers no countervailing medical benefit and i think for doctors who do use it under the fear of prosecution under the partial birth abortion ban they have weighed the risks and benefits and believe that the ability to complete the procedure for their patients outweighs those risks but you are correct that it doesn't change the fact that the evidence shows that it imposes risks and again even those doctors who are doing it under those circumstances are always able to perform a standard d n a if for some reason it's difficult if it's too impossible to administer if it's contra indicated for the woman for some reason or if it fails i would like to address the factor on or about planned parenthood of course planned parenthood is another example of a case that after in the wake of the partial birth abortion ban decision required the use of jock's it only after twenty weeks but then of course abandoned that and it is now only permitted and again only after eighteen weeks your honor the virtually undisputed evidentiary record here shows that the state's so called workarounds to the ban would impose an undue burden not just because it would make the unease unavailable because these are ineffective but because it would force every woman seeking to seeking an abortion after fifteen weeks to undergo a painful unnecessary experimental and riskier procedure and nothing  that and nothing in any other supreme court case supports any state interest allowing the state to inflict those harms on women seeking abortions seeking to exercise their constitutional right  clinics are permitted to make an as applied challenge basically on a facial application theory and by that main the state could come forward and say listen here here's a stipulation we've entered into your honor and the step elation is there's a woman that lives over there and dekalb county and both sides agree she's just whatever reason this would not be a substantial burden as to her in faction that will benefit from so though you can't entertain a facial challenge because there has to be unconstitutional has to everybody it can't be one person that it wouldn't violate the constitution to apply it to so this woman it wouldn't yet by giving the clinic's third party standing on behalf of a class of women their patients who are having abortions in this category you are in a fact giving class relief to all of their patients even though some of the patien psych class facial relief has to all of their class of patients even though some of the women that the under my hypothetical and is having on the hypo part of the hypothetical even though some of the women it could be constitutionally applied to so isn't that an argument against as a plaid standing for clinics and physicians as a plan really for clinic are full women go to that clinic for whom this would not be for whatever reasons would not be as stanch will risk our substantial burden it would for the other ninety eight point nine percent but not for these four women but in effect saying we get the entire clinic and all of its patients and all of its physicians the a fact of invalidating th statute has to them you are in effect giving facial relief to the clinics and the patients even though some of them are not entitled to it because it would not be a substantial burden as to the for well your honor i'm not sure that that's an issue with third party standing as opposed to what the supreme court has held is the test for facial relief in abortion cases which is not salerno but the large  new no when kennedy got got the other four kennedy says but that's debated now you know what i'm talking about he says many but we need not decide in a whole women's health they write very clear that the t est for facial relief in the abortion context is the large fraction test is not the salerno test so if the law is unconstitutional for a large fraction of women for whom it is relevant that is how it was explained in k c but definitely affirmed in whole women's health then it is unconstitutional on its face i don't think that is a bug of the third party standing doctrine as much as it is what the supreme court has held the test for facial relief is in the abortion context i know that may not be satisfactory but i believe that is why that relief is perfectly appropriate and legal under how the supreme court has set forth how these cases are to be decided as applied is the way to go but then they as applied it to they not to the individual women but to physicians and clinics as applied when it was there was uncertainty that it was necessary for any woman yes that is what gonzales held of course in whole women's health where it found that the laws would have imposed an undue burden on a large fraction of women it did not hesitate to strike the texas laws on their face even though as applied relief was requested by the plaintiffs with respect to at least one of those laws the court decided it had to strike them on its face maybe the court was worried about what i'm worried about which is and it's not the same thing as a facial for the reasons that we've stated which is if one of those people women that the clinics were representing could be constitutionally applied to then that screws up the whole functional relationship thing and that would just take care of that but converting into for a short life i think that the supreme court has has held that these don't have to be litigated by each individual woman as she is currently seeking her abortion based on her current circumstances i think that is the purpose of the large fraction test because as explained in a ott where there is a constitutional violation the court needs to be able to give relief of course without rewriting the entire statute and of course that is essentially what the state is asking for here when they're discussing as applied relief as to obese women or as two women for whom one injection fails or as two women for whom you can't find the cord this is a law that was on its face says nothing of demaio it says nothing of attempting to mys it merely bans d n a is on its face and the as applied relief that they are truly seeking here is really for the court to take out its pen and rewrite the law as to various circumstances in which it could potentially be applied and that's simply not the province of a court legislatures are not entitled to write blatantly unconstitutional laws and ask the courts to holy rewrite them in an effort to fixed i would like to finally address the issue of the undue burden test and the state's arguments that for some how whol women's health creds created a different undue burden test for regulations that are motivated by an interest in women's health and a different somehow a different under the burden test should apply in this case and of course whole women's health no more created a new under burden test then casey created a separate on to burden test for parental consent laws and stenberg created an undue burden test for method bans and whole women's health created an undue burden test for health regulation laws if the whole woman health makes anything clear it is that from casey to get an solace to that case it is a single undue burden test it doesn't matter the interest that the state is asserting it is the same test and that is the test that the district court properly applied below and is the test and the result they reached is consistent with the supreme court's holdings in the court does not have any other question i have one and it has nothing to do with the merits of going to the house and everybody agrees but my mind rebels that and that is how can  physicians measure pregnancy is actually from the date of the woman's last menstrual period which is two weeks is estimated to be two weeks before implantation and so it's because you don't really nobody really knows the invents names just to make the rest of us realize that we're not doctors and that just makes no sense but i can't dispute that your honor as i said it has nothing to do with the merits and i appreciate that explanation and apologize judge there was testimony in the district court yes that these procedures would increase risk but that's true when they're used by doctors in other cases  today may be a minority of doctors but there are doctors today who use these same methods to induce field mines even though the knowledge that there's some increased risk is there is for any injection even a flu shot or anything else that a doctor does but they've determined that even though there is some risk without any corresponding benefit that they will do it in order to comply with legislative ban such as the partial birth abortion ban so we believe the doctors would do that here as well as not to clinics we continue to believe that the way these challenges should be brought are either by women or by the doctors on behalf of women asserting that these procedures won't work in certain cases the there although yes there is testimony that these procedures are not tested before a certain period but one were banned from using it in any situation at these clinics or they bring in on behalf of a specific moment given the pregnancy measured from you know just post fertilization i mean how do you get these through i think you could get these to i think i think the clinics could bring a claim on behalf of for example a class of patients who are think you could bring it for patients in future patients too and i think that this could be brought these cases can be handled quite quickly tend to get pregnant and then get an abortion oh come on ok that's less likely but we do think that still that this would these issues would be better brought in as applied challenge and while there is risk involved in absolutely any procedure we think it's a said that many doctors have determined that these are acceptable level of risk in order to comply with legislative bans and as the court said in gonzales considerations of marginal safety including the balance of risk are within the legislative competence when the regulation is rational and in pursuit of legitimate ends when standard medical options are available mere convenience does not suffice to displace them in some procedures have different risks than others it does not follow the state is altogether barred from imposing reasonable regulations so we believe it's just that the district court should be reversed in this case obviously this argument that we believe gonzales is controlling and requires reversal if you disagree in determine that supreme court precedent requires that the district court be affirmed we would ask that opinion at least acknowledge one thing that this procedure the dismemberment abortions it is a monstrous procedure and it is not unreasonable for alabama to want doctors to use another in a more humane way casey acknowledged that states have a profound ride in the life of the unborn and i don't hear any disagreement with that from my colleagues on the other side gonzales if it means anything at think it means that states is just as kennedy says to profess profound respect for the life of the unborn that means that we can pass laws we believe this says that this that you're aborting is not merely the product of conception it's an unborn child and we certainly cannot put up a substantial obstacle or abortion i understand that you think would have more credibility than kennedy and thomas and in that the state did knowledge the state's profound interest in that this is a monstrous procedure you would like as i believe was home said to look for us to look the facts in the face whatever the laws to them in other words acknowledge the truth fact and then plod along yes yes but there are a lot of opinions that i've seen that argue that you know this is the law we're required to rule this way but maybe this shouldn't be the law and we do think that the state does has has a profound interest here in the life of the unborn and it's not unreasonable for us to suggest that this be handled in a more humane way