heyst numbers seventeen dash six one five one and seventeen dash six one eight three b m w women's surgical center p s c at all verses in here at all oral argument not to exceed fifteen minutes to be shared by the defendants fifteen minutes for the plaintiffs chad meredith for the may please the court morning ours my name is chad meredith and her present secretary adam meyer in the kentucky cabinet for health and family services in this case there is i'm going to be arguing this morning on behalf of the commonwealth with respect to the merits of house bill to kentucky's ultrasound abortion informed consent statute and i'll be speaking for nine minutes on that issue your honour's following me mr travis mayo my colleague from the attorney general's office would like to address the court and he's going to speak for three minutes on the issue of whether the attorney general's office in the board of medical licens speech case your honour's and in light of the fact this is a first amendment free speech case the district court did something truly remarkable enjoin kentucky's house bill two which is a duly inactive state statute that does nothing more than require physicians proud of performing a medical procedure to provide patients with truthful non misleading disclosures that are relevant to their decision to undergo that procedure that's all that it provided it didn't the existing statute prior incrementally in two thousand and seventeen the kentucky general assembly decided that it needed to go further than the existing informed consent statute it decided that it would be more prudent for women to be provided the information required by house bill two and you're of there when you look at the case law that applies in these cases the fifth circuit and the eight circuits also allowed states to act incrementally there's nothing that says that a state has to act all at once at one time for all tom states can move the problem that the general simply perceived your honor and the problem also that we see in the record we have affidavits in the record of the effect the problem is that there is a number there are a number of patients who don't know the information is provided by house bill two and the general assembly doesn't know what patients don't know if that makes sense for instance there might be instances where a patient is offered the information maybe a doctor says well i'll show you the ultrasound if you want and maybe the patient has a mistaken und erstanding that the patient already knows everything they need to know and for instance the affidavits in the record your honor tell us that these patients who submitted affidavits said well we didn't understand we didn't understand the nature of our fetus partner abortion we were we were under the impression that it was just an inanimate clump of cells and tissue we didn't know that it was already assuming the human form that it looked like a human and had we known that had we actually seen that we probably might have made a different decision and we don't think we would have women were were treated so we don't know the exact timeframe but the key point is that they they they portray that not every patient fully understands the nature and consequences of the abortion procedure not every patient understands the development of the fetus and the stage at which the fetus is and the extent to which is developed and that's the point of house bill to to insure so let's listen speak lir with h b t comparing it to the initial statute what is the additional information that a patient gets under h b two that they didn't get under eighty one because the same thing that was literature the talk about the fetal progression that was available during during the initial statutes so what's the extra well the the extra your honor is that house bill two really in my view is is an easier case neither casey or the prior statute because what housefull two is is it is really truly in the heartland of what states do when they regulate informed consent and ask and you factually here is the additional information that the patient gets under h b two sure and i apologize for my long winded answer i'll answer that directly now the additional information is they are required to be shown the ultrasound and have and they are required to have the ultrasound explained to them and describe to them and  important because the undisputed evidence in the record is that the apple e's perform an ultrasound prior to every single abortion in a way every single abortion has an ultrasound perform another additional thing is the hard core correct your honor there is also information well that's correct or are they can and that's that's your honor that's in order to respect the individual autonomy of each individual patient because again the legislature doesn't know what each patient knows or doesn't know some pate different individuals have different demands and different need for information and housefull two is the only way the legislature can figure out to guarantee that that information would be presented to people and you are nothing nothing prevents doctors from saying what else they want to say and doctors can put the information whatever words they want but your hon or the key point here is that the united states supreme court's decision in that national institute of family life advocates which was issued just last month refutes the district court's analysis and the district court's reliance on that's that's my my main question for you is what is our standard here a legal standard were applied are we applying nif law and if so how does how does his fourth circuit test play and enough i don't see any reference to a sliding scale test and  right judge judge was you're exactly right that nif luck completely refutes the notion that there is any kind of a sliding scale if your honour's remember in stewart the fourth circuit said well we've got this sliding scale where on one end of the scale you're regulating the public speech of professionals and that's that's a strict scrutiny on the other end all you're doing is purely regulating professional conduct and somewhere in the middle you're doing things that affect professional speech and conduct and that's that's maybe intermediate scrutiny what nicholas says is in general if a state in x states generally cannot act content based regulations but there are two exceptions two exceptions one is the south or exception are you arguing that applies here well not specifically just i think it can apply here because after all we're dealing with disclosures that the state requires physicians to make prior to entering into a commercial transaction they charge for these services and before they perform this service they have to make these disclosure so i think we could rely on it and i think the court would be within its rights to rule out as our but i don't think that's our easiest path to victory or easiest path to victory is casey and casey nicholas says that when you regulate when the state regulates professional conduct and that conduct regulation incidentally burdens speech it's ok as to be reasonable regulation of professional conduct that's correct judge and we get that isis reasonable well it's reasonable for a number of reasons the judge first we know that they're already performing sounds in every case every single case we know there are perform them all the house bill to requires them to do is turn the monitor around show it to the patient and say here is what this depicts and we end from the record the indisputed evidence the record is that this adds absolutely no more than five minutes to the procedure there's nothing unreasonable about this  mandating that it be shown again or are there's a potential disconnect between what the what the patient might actually know and what the patient doesn't realize the patient doesn't know and that that's what the state is speaking to and that's what the supreme court was speaking to lin when the when the supreme court said and i'm going to quote it said it is self evident that a mother who comes to regret her choice to abort must struggle with grief more anguish and sorrow more profound when she learns only after the event what she wants did not know and that's what ho purely factual speech it's truthful it's not misleading and it's relevant to the procedure and we know from if that that's the test it refers to casey i just want to i want you to fully answer jeb bush's question because i interrupted her i'm sorry i have actually have two questions your mind if i could add to it so why is it a reasonable why is it a reasonable regulation and then i think the second part of the test is asked incidentally affects the speech so why is this only an incidental effect on speech ok why is it reasonable well i think i think to answer both of these questions we have to refer to casey because nif cited casey as the prototypical example of a regulation on conduct that incidentally burden speech so we go and we look at casey and what does casey say casey set up this dichotomy between on the one hand it illogical speech which is the woolly example the live free or da license plate on the other hand you've got the w an example which is just a regulation on the practice of medicine that case involved mandatory disclosures to the state of prescribing information and what did casey say casey said that the particular statute in casey the informed consent statute there was under the whale an example and wide it found it was under the whale an example well the supreme court characterize that particular form because instead shoot as requiring nothing more than truthful not misleading and irrelevant information that's that's the standard so as long as we're dealing with truthful not misleading and relevant disclosures we're under the whale an example and casey says that's rational basis review that's what we have here a judge in and casey characterizes that as a reasonable regulation of the practice of medicine so if it's truthful not misleading irrelevant it's a reasonable practice regulation of conduct and i think the relevancy issue is what gets really gets to the heart of your honor's question because there could be instances where you know if if for instance let's say that  state required a physician to read an entire medical textbook to a woman prior to performing an abortion what you are that's probably not going to be relevant i don't think that every single thing in the textbook is going to be relevant to the decision so that probably is not a reasonable regulation on conduct in that instance but where you've got a simple situation where you're requiring physicians to provide particularized information that particularly relates to a particular patient or a particular fetus in her particular situation and takes absolutely no more than five minutes to do i think that's right in the heartland of casey right in the heartland of what states are or are permitted to do under their traditional authority into the general police power to regulate the practice of medicine the patient and interfering with the doctor patient relationship that's a statement and not a question but what i do want to know from you is what's the undisputed evidence in the record that the pr existing informed consent statute was insufficient to inform the patient of their choice well your honor i think the answer is that answer i think quite simply is that the general assembly had become aware that in their perception that this was a problem we had i know i know anecdotally members of the general assembly expressed that they were aware of situations like that we don't have any  you put a man i think i know the affidavits absolutely are on of those affidavits are very important they absolutely do mean something and that that that's evidence in the record shows we need this that evidence is very important shows that there are you don't know whether those affidavits are post two thousand well that's correct your honor but i don't think it would've made a difference because why would it have made a difference if you didn't have an income for informed consent law prior to two thousand and you got one in two thousand so if these happened before well your honor i think the answer is the information that the women who submitted affidavits said that they would have liked to have had which is the information that house bill two requires them to be provided that information would not necessarily have been provided to them under the prior informed consent statute you know in fact those affidavits just quote basically what casey says it says it seemed so exceptional to conclude that some regret their choice to abort the infant life so isn't that isn't it just reiterating what casey already so you're right your affidavits i mean it they mirror casey in large in large part they do in and what you're seeing there is casey foreshadowed these affidavits i think basically thank you thank you your this court to reverse that this isn't because in this case the plaintiff's name the attorney general as the chief officer of kentucky with general enforcement authority in the belief that he would enforce the civil penalty here which is a fine but which statute express the delegates the collection of unsatisfied judgments and debts to the kentucky department of revenue and to the local prosecutors in kentucky countless attorneys and circuit courts and county attorneys and district courts so the way the that the attorney general was brought into this case as a defendant required him to defend that eleventh amendment immunity and that it does not fall within the exceptions stating ex parte young because there is no connection w requires between the attorney general and house bill two in this case for the collection i should know this because i'm from kentucky but let me ask you to the prosecutors in kentucky not report in any way to the attorney general yes judge grosser is a unified prosecut interested in their respective jurisdictions but also to take the necessary steps to collect and satisfied judgments and cause them to be paid into the state treasury so while there is a unified prosecutorial system in kara's chapter fifteen and the attorney general does have a role in that with the prosecutorial system that chapter also along with chapter sixty nine gives exclusive jurisdiction to those laws or so is it the attorney general's contention that unless the statute specifically says the attorney general is charged with that there must be when his name an attorney general or other state official is named as a defendant in this official capacity because that has generally foresman authority without any connection between that state official in this case  attorney general and the law at issue is not sufficient to abrogate the eleventh amendment immunity and fall under the exceptions to an ex parte young and that was the role the attorney general was in here judge bush in rather than being noticed of the challenge to the constitutionality of housefull two he was named a defendant because of his general enforcement authority under keris fifteen of two and along with those local prosecutors the police point to care as fifteen zero six  o and so the attorney general myself in the shoes and collect and search for judgments for the department of revenue however the statute expresses states that he may do so only when upon the request of the department of revenue and it also concludes good morning your honour's alexa colby molina's for the plaintiffs a police h b two requires physicians to force ultrasound images a graphic description of those images along with fetal heart times on patients while they are lying on an exam table half naked with an ultrasound probe either inside burg this is not your honor this is a first amendment claim and this is about the speech that h b two forces physicians to impose on their patients even while the position must keep speaking even if the patient asks them to stop even if the patient is plugging her ears or hiding her head in shirt or sobbing hysterically all of which is what relevant here there's sort of two lines of first amendment cases that will make it relevant as stewart the fourth circuit judge wilkinson and stewart pointed out that when we are looking at and evaluating compelled speech in particular the effect on the listener is relevant particularly when we're talking about a captive listener so hill v colorado is a us supreme court case in which the effect on the listener is relevant what was that case about that case was about protests in front of people's homes and so it was about a captive audience and the effect of protected speech on the audience and so the other reason it's relevant here of course is because law has most recently instructed this court to do and mifflin makes very clear that speech between physicians and patients including compelled speech even if it's factual even if it's designed to inform the patient is protected fully protected by the first amendment and less it falls within the traditional and historical exception for informed consent and the reason that the effect on the listener is relevant there is because as the undisputed evidence shows as well as the evidence from the american medical association and the american congress of obstetricians and gynecologists informed consent is not designed to reduce patients to sobbing to plugging their ears while their physicians are still talking to them to hiding their head in their shirts to having to beg their physician to stop informed consent at its heart is about patient autonomy and self determination and it's about the trust and the relationship between a physician and a patient and so by utterly destroying any elements of that it is so clear that this law does not fall within a historical exception for informed consent and therefore should receive the full protection of the true you're already doing we are already offering any information even beyond what would be contained in h b two to the patient what this what what isn't the standard of care and what the plaintiffs weren't doing is forcing it if she said she wasn't interested or continuing to force it if she asked them to stop so when you say standard of care are you saying you commit malpractise if you don't do the ultrasound as part of an abortion procedure it is  well there's i think there's two elements there i think it has become quite common if not universal to perform an alter sound for clinical and diagnostic purposes before the sand before an abortion in order to date the pregnancy to ensure there is a pregnancy to ensure that you're not dealing with an ectopic pregnancy to see if there's any anatomical problems i think it would be i can't say that i know for sure if there are any doctors out there who would say that they could do that without an ultrasound but it is certainly far and away the pervasive standard of care to do that it is also according to the clinical guidelines by the organizations that a credit abortion clinics the standard of care to offer to show the ultrasound images to every patient and to describe them if she wants and to answer any questions so certainly someone who would take this out of this context oppose you had a x ray of someone who who was a s would you say that the government could require the doctor in that instance to show the x ray to the patient or does the doctor have a first amendment right to only offer it to the patient and allow the patient to say i don't really don't want to see that x ray i think it depends and i think you would need certainly some evidence from oncologists or someone who practice in this area but i think it depends on what information is needs to be conveyed to the patient so i think it is undisputed here in all areas of medicine that there are core components to informed consent and that's you know understanding the risks and benefits of the procedure understanding the nature of the procedure understanding alternatives a patient must have that information otherwise he or she just simply cannot provide informed consent and nobody is saying that the first amendment would stop a state from requiring physicians to give that information to patients but we also have evidence here including from expert at this it's that it's undisputed that in no area of medicine is showing pictures to a patient the only or required way to certainly convey information even if it is necessary information so i think it would perhaps if the state passed a law that said no matter what the patient said no matter what the patient already knows no matter what the situation you must put that image in front of their face and even if they close their eyes don't take it away you keep it there i think there might be a first amendment problem because i think we're outside the realm of informed consent but something that simply requires information sorry i want is not the analysis that we or the result we should apply here could you distinguish those yes your honor and i think that the most recent decision from the supreme court in if law also illustrates why the fifth in the eighth circuit are wrong in the fifth in the eighth circuit essentially applied the undue burden standard which we have all agreed is not relevant here which is to say any information that is truthful and non misleading the state can require physicians to force on patient what nicholas says when we were dealing with information that the state of california it was purely factual non misleading designed to inform the  patient based on the state's belief that the patient didn't have access to this information the supreme court said that's not good enough we don't take all physicians speech out of the protection from the first amendment just because you state want patients to have this information we are only going to say that physician speech lacks protection if it falls within a traditional sort of historic exception for informed consent and that is what's relevant here because what we are talking about this law has nothing to do with informed consent and that is why the fifth in the eighth circuits conclusion that fits that physician speech just automatically has no protection any time truthful information is involved is incorrect the fourth i certainly think that under nif less strict scrutiny would be appropriate but as in if you know i think in the flat the end of the day the supreme court held that because that law didn't survive even intermediate scrutiny it was going to strike it it didn't actually do a strict scrutiny analysis and i think the same thing is the case here the the district court below held that this law didn't survive even intermediate scrutiny so it would be perfectly appropriate for this court to affirm that decision think exactly right there what happens now and what is the standard of care is that she performs the position performs the ultrasound and the fifth in order to do that the physician has to have the screen in in front of her so that she can see what's on the screen and do her clinical and diagnostic see let's do before all right so what she does not do now is provide without the patient's consent a simultaneous explanation of what the ultrasound is depicting she asks the patient if the patient wants the specific any information that's contained in the ultrasound but she does not provide a simultaneous explanation but that's only part of the you have to display it so she could may view what's wrong with that what's one reason that she should have the option if she doesn't want to view it why s she does but says she has to avert her eyes she has to cover her eyes or she has to put her head in her shirt that's not how informed consent works if you that's how an angry parent talks to a child there or to the same thing with th while beating heart is horribly offensive if she doesn't want to hear it if she doesn't want to hear it there's nothing that she doesn't have to hear or may hear i think any situation it doesn't resemble anything like informed consent require anything of him except work to good to me no i don't think that's true at all i think the state could of course they didn't do this here but they could require the physician to say would you like to see your alter sound are there any questions you have about your role for sound i think absolutely there's nothing wrong with the state requiring physicians to offer that but to say i'm going to shove this in your face right now and if you have a problem with it over  feel free to hide your head in your shirt i don't think that resembles informed consent now the state has a right to try to convey let's be very clear to convey this information to patients but what we're talking about is conscripting the position to do  truthful about giving her the opportunity to look at what i'm truthful about there is nothing and that's certainly not argument but i just can't be clear if the language of statute giving her the opportunity of forcing her to make a forcing it on her and requiring her to take of a sieve measures to avoid seeing or in a situation where that's the ultrasound and if a patient wanted to have the doctor do a simultaneous viewing of that that's that's not prohibited if the patient wanted to hear the association of the heartbeat there's nothing to prevent her from from doing that absolutely not ok but this takes the decision away from the doctor in the patient and the state mandates a procedure yes and mandates in specifically in first amendment context the delivery forcing speech on the patient and there's but there's no abridgement of the right of the of the doctor to say whatever he or she was other i mean as long as they provide what what the statute says they're supposed to say they can say i recommend you have an abortion well i think that may be unethical for other reasons for a doctor to try to pressure of haitian into a medical decision or not but under the statute under we're talking about the forced ultrasound certainly they can add additional words beyond what is required in the statute and for example because that the plaintiffs here did say right now i'm going to show you the screen and describe it because the state has changed the law and is requiring me to do that but i just bought point is there is no restriction on whatever medical ethics allow you to say as an opinion as a doctor there is no restriction on the doctors offering of his or her opinion no absolutely this is just of the problem with this statute is is merely that it's forcing certain information but not that it's stopping additional information in the supreme court has recognized for example in cases like hurley that just the fact that that an individual may add additional speech or even add a disclaimer isn't sufficient to save something from first amendment when a validation the question in this in this h p too is there an exception to this procedure in the case of rape or incest with a pregnancy result the grim reaper and so there is no exception for rape or incest or for fetal anomalies and in fact the texas statute actually did have an exception for both of those things but this statute like the statute that was addressed by the fourth circuit has no exceptions thank you you're li like to focus the court's attention on one overarching question that kind of hovers in the background of this case and the question is this are states going to be able to continue regulating the practice of medicine  pursuant to their traditional authority or their traditional police powers or are the federal courts going to now over see the informed consent process that's an issue that really hovers in the background here and the answer is set forth an if and if a quite clearly says that this is the province of state legislatures and where state legislatures are regulating professional conduct and only having an incidental burden on speech it's it is not a first amendment problem and if appoints us to casey to determine when that is  and judge bush you asked about the reasonableness issue earlier and there's another thing i'd point out in that regard these disclosures are just pure scientific facts what appears on an ultrasound and the scientific description of that is a pure scientific fact there can be no debate about it accuracy there can be no debate about it's not misleading nature there can be no debate about its relevancy and that is all that the commonwealth of kentucky is requiring here and the commonwealth is requiring that because it is the only way to guarantee that the patient actually receives this vital information that the affidavits that we've got in the record show that there are a number of patients who don't fully understand the nature of the fetus within them or the nature of the procedure and so if they're simply offered the information they might reject the information thinking well i don't need to know that because i already know what i need to know and if that's a mistaken assumption then later on when they learn the truth  it different if when the showing the images the patient has the verdict her eyes or has covered her ears are you still in the same position well know your honor i think the patient is not going to know because the patient chose not to view and not to hear well your honor at that point at least the patient has the opportunity to correct any mistake in interment mistaken understandings the patient might have and that's the whole point here that this respects the patients autonomy giving the patient the freedom to reject that information and your honor in that this is truthful non misleading and relevant information and that is right in the heartland of the state legislature's authority to regulate the informed consent process nif  tells us that this is absolutely not illogical to take into account the trauma that might be inflicted on women who are forced to see and hear those images that might affect  decision that they make one way or the other well your honor i can tell you that that's an issue that the legislature would have weighed and i think the kentucky general assembly takes its obligations from a policy standpoint very seriously and you know i point out that you know the majority of women in the legislature voted for this bill and your honor we know from case law from casey and gonzalez that on the other side of this issue there is a very real trauma that can occur when women have an abortion without having all of this information and we see that in the affidavit so there's a potential we know there's a potential for trauma when they don't receive this information casing is always tell us that our affidavits tell us that and you are that is what the legislature was trying to avoid and you argument thank you for your written submission of the matter is submitted and we will rule on it