this is a case about a district court ignoring precedent the district court ignored the standard for determining an undue burden the district court ignored a large fraction test the district court nor the supreme court's conclusion that particularly barbaric abortion practices cause like logical harm and the district court did all of that to ignore the brutality of killing an unborn child on the very eve of viability by ripping its limbs off tearing open its abdomen and thorax and crushing its goal the district court determined that the four commonsense abortion regulations at issue here likely imposed an undue burden because it did not believe they were more beneficial than burden from and because they might cause some patients to delay or forgo but that neither describes the undue burden standard nor the facial relief standard rather irregular and abortion regulation imposes an undue burden or it is substantially more burdensome substantially outweighed their minor or nonexistent benefits and the fifth circuit reached the same conclusion injured june medical versus gay but despite that the phrase substantially outweighs appears just once in the district court significant burdens that you talk about i think that describes what the supreme court concluded the standard actually is i think you're on to the husband's court never use those terms i don't know that if you use those exact words you're imposing your arkansas version of what the supreme court should have said i disagree with that your honor i would i'm we're using the description that this court used in planned parenthood versus jag leaches cried what whole women tell first the tellers that help which is you have substantial great numerous burdens you balance those against nonexistent benefits in that case in the supreme court said that's what the balance was in that case and that's why it imposed an undue burden again the fifth circuit has also reached the same conclusion well what do we care about the sixth circuit is the supreme court that governs our decision in this case and prior decisions by this court including planned parenthood versus jackley which have said that's the standard that ought to be applied to describe the quantum of proof required to show substantially outlane so despite that and i actually should add your honor it's not just that we're not just arguing that that standard applies we're actually arguing that the just a court really didn't do any balancing here arkansas when this case whether or not that's the standard i think a review of the walls at issue here clearly shows that the burden is here do not outweigh at all the benefits of the law of that issue and i don't think the district court actually did any balancing in this case and i think that that's very clear that if you look at let's take for instance the dismemberment plan your honors if we examine what the district court did and we can talk about the sort of benefits analysis in little bit more detail in a milk moment but the district court in the benefits side largely ignored arkansas all of the benefits of arkansas as well mainly promoting respect for life and protecting medical ethics and then on the the burden side in particular it really in order and failed to conduct any burdens analysis whatsoever from which to conduct the way so what the district words a district court to do and consider whether this was the birth i believe the district court failed to actually consider what the burdens were i think what the district court did is let's take the jocks in for instance your honor and the case of to jackson the district court merely concluded that jocks and have some risk for patients at large those risk being things like wrong hopkins actually does it now so he can't really turn around now and suddenly argue well i can't use it when he's already made the decision that it's feasible that it's safe for his patients that it does not present significant risk for his pay and it can be safely used to accomplish democracy but going back to the point i was making earlier are what i think actually happened here is when the district court tried to look at the burdens the district court merely asserted that there are generalized health risk that  accompany any medical procedure the district court said that in that's correct any medical procedure is going to show and to include health but the district really did not do an analysis of what are the risk of digit and said it is sort of these are there are the generous things like infection from a needle which is true anytime somebody goes to undergo a medical procedure things like spontaneous abortion those are things that exist now and hakan still has decided he's going to use the jocks and beginning at eighteen weeks so he's already made the decision that those aren't significant risk the district court took those generalized risks that applied to a very small subset of patients across the board and then added into them the unique risk that patients with unique medical conditions face so for instance patients with cardiac conditions cannot generally receive to jock's and it would present greater risk the district court never made any effort your honour's to determine how many patients have those risks in other words it just said song and it said some of these and the generalized risk and it came to a conclusion that some women would face increased to one woman or applies to a large number of women you simply can't figure out what the risks are that you're balancing and this was a facial challenge was a no that's right your honor and on a facial challenge the district court needs to show that a large fraction of patients would actually be burdened do send it back for yet another fact finding i don't know action now your honor i don't think that's necessary i think this court can look at the record and see what was produced and the district courts conclusion in the findings in the first instance a they're not finding in the first instance your honor because the district court only found that some women would face those greater risks and some women as this court determined in juggling united states supreme court said in casey is not sufficient to support facial relief there is no case out there that holds that some women is sufficient for facial relief indeed the fifth and sixth circuits have actually specifically held the right and abortion regulation is only only imposes a burden on a large fraction of patients were practically all women would face that burden and that's the standard that best reflects the supreme court's general jurisprudence with respect to what you need to bring on a facial challenge in other words if some woman is enough we've lowered the standard so much that the it basically blurs the distinction between a facial challenge and and an as applied challenge and going back to the facial challenge point the part of the relevant point here is they could bring in as apply challenge if if there are a subset of women who face these unique risks they could have brought into the facial or as an appeal as applied challenge and that's what justice kennedy's betting involves is that if there are unique risks that are applicable to a unique subset of patients your honors that's what it has applied challenges for we can then balance t hose unique risk of those unique burdens against white what the benefits of the law are and that would be the more appropriate route to go  so what i'll do now i guess since we sort of talked about the fact that this is the facial challenge and because the district court not only in the dismemberment ban but on each of the individual laws here basically resorted to declaring that some women would face unique burdens or some women might forgo or delay and that's not a justification for a facial challenge what i'll do now is i'll go through the individual laws here and talk about some of the other your honor without asking about the the some of the factual errors i'll go through sort of the the district court did not or it acknowledged arkansas is interest and recognize that arkansas has an interest was in promoting respect for life and safeguarding medical ethics but nevertheless having said that in just three passing lines that were largely dedicated to criticizing the legislative process three lines that talked about arkansas interest your honor the one hundred forty three page opinion the district court then proceeded to demean those interests by declaring that arkansas had simply banned a medical procedure where quote fetal tissue generally comes apart that's not a descriptive of arkansas interest here but in addition to that the district court largely ignored those interests and instead in its benefits analysis it opted to focus on what the district court deemed the band's lack of health benefits in so doing the district court simply disregarded casey's central premise that states may enact legislation respecting life and promoting male medical ethics even if that legislation does not provide he he doesn't distinguish between those entries those interests are equal and the district court couldn't just give a three line passing assertion to those interested had to actually examine them and weigh them and it simply did not do that here and even with respect to health benefits the district court ignored them solace is holding that states have a significant interest in protecting women from the severe depression and mental anguish associated with particularly barbaric abortion practices that's what the supreme court has said is one of the that have to be considered and the district court simply refused to do that it declared the opposite it said i'm not going to consider any evidence to that point and that means that the district court simply didn't conduct any way in analysis at all because it simply did away with interest and it was what should have done what should the district court have done with respect to this argue it should have actually consider those entries i i think when you're actually conducting the way in your honor you would have to determine whether the the burdens that are alleged here on again a subset of some women you have to consider arkansas as unique interest and in banning a particularly barbaric abortion practice and whether does so actually for instance on the health side has helped benefits and again the supreme court has said that banning a particularly barbaric abortion practice protects women from psychological harm in addition to that there is evidence in the record this is one of the factual disagreements with the district court there is evidence and has in the other circuit phased in the old the challenge to be any procedure  mandated like we have in this case dismemberment day ends there the fifth circuit has heard an argument on a very similar ban there is no decision yet in that case your honor the eleventh circuit issued and you relatively recently that i know opposing counsel highlighted in twenty eight a letter the author mentioned and i'm i'm happy if you're on i would like to sort of talk about the differences between this case and that eleventh circuit case so how is this case so much different there are any different from the eleventh circuit decision it's substantially different your honor the record in that case is very very different from the record in this case but that having been said i think there are two fundamental differences between that case in this one one is legal and one is factual  legal and one is factual your honor it's on the legal side that case with an as applied challenge is a factual or a facial challenge and as a consequence of that the eleventh circuit did not need to wrestle with the issue that's so important here which is whether or not a large fraction of women would be required to forgo or delay in abortion and stead because that was an supply challenge the eleventh circuit simply didn't have to conduct that analysis on a large fraction in choir and that's also important the fact that with an as applied challenge because of the eleventh circuit actually explains in the context of an as apply challenge unlike a facial challenge in a facial challenge evidence of medical uncertainty that is disagreement about the availability of a particular procedure or documented disagreement or assertions that of that particular procedures aren't available as alternatives that's not a basis for facial relief on a facial challenge and the eleventh circuit emphasize that made a difference in that case by contrast this  facial challenge and all they've asserted it is medical uncertainty or at best they don't know whether a particular demise procedure will accomplish actually accomplish great dismemberment to minds by contrast you know it's our position your honor is that there's evidence in the record that shows that it can be hopkins routinely uses now to accomplish commodities so that evidence of medical uncertainty is another reason why this case comes out different wasn't the precedent in the eleventh circuit the medical and certain the legislative discretion different than it is your honor in fact in planned parenthood vs jackley this court said that a woman's health versus heller's that was very careful to preserve the the medical uncertainty language from can follow us this court has already addressed that issue as well but in addition to the medical uncertainty here is again what well we don't believe that there is any medical uncertainty your honor so again taking to jocks and as an example of a previous number of methodology there is direct testimony in the record that hopkins currently  performed by anybody in arkansas all in the face of these statues i don't i honestly don't believe that there's there's any testimony either way and the reason i say that your honor is so the district court found  representations that there would be no more second trimester abortions because he wouldn't proceed with these alternative demise procedures however hopkins is not it is just a court found that hopkins is neither arkansas only thek and trimester abortion practitioner he's not even  yes you know that's one of the arguments in which your opponents going back to the distinctions on the eleventh circuit really quickly the factual difference your honour's is that in that case the doctors who had brought the other apply challenge did not regularly use the and that meant that they they could claim that they didn't know how to use it they were unfamiliar with that they they couldn't testify as to whether it would work or not by contrast here it's unequivocal that hopkins regularly uses the jocks and to accomplish little demise and that because he regularly uses it he simply can't make that kind of an argument that was so relevant in the eleventh circuit case so on the bernard burton side of the analysis i know we talked a little bit about the benefits  the burden side in addition to simply asserting that because dr hopkins represents he will not continue performing these procedures second trimester abortions would be unavailable the district court also suggested that because no single demise methodology might be appropriate or successful for every patient every time that meant that greatest number minimized was never feasible that all or nothing short cut your honour's is simply nonsense the fact that jackson might not be available for a particular patient or might not be successful for a particular patient does not establish that it's completely unavailable or if it goes there the alternative medicines there there are alternative methods used to get the bill in concord which is always available under your th under our theory is also always available and we would argue that jocks and which has a documented failure rate that the district court determined was that most five to ten percent but now doesn't potassium chloride raise of healthiness for the mother the same is most of us would think of when you're injecting somebody with potassium chloride it's a it's not a dose that in the abstract prevents any health risk to the mother and less the the person performing that injection hit somewhere entirely different than where they were aiming in other words person performing the injection would actually have to hit a maternal blood vessel and that's extremely unlikely they just record essentially declared that you would need an incompetent provider in order to to miss like that for you and that's not a reason for rejecting it out of hand any medical procedure conducted by an incompetent medical provider including the d n a kermit gosnell being the perfect example of an incompetent in the words going to doctors in arkansas are competent to do this sort of thing so we believe that there's testimony in the record your honor that that any doctor who has experience performing an amniocentesis which is something all o b g y n know how to do could perform these injections there's also some in the district court also recognized that hospitals do perform these procedures the hospitals right now are the only ones that perform them but that's partially because there's no incentive for anybody else to perform them there's also testimony in the record from dr big e o about washington university in st  conducted dini abortions in a hospital setting but actually performed the potassium chloride injections in an outpatient setting so it's simply not true that these injections cannot be performed in an outpatient setting or that hopkins or one of the other practitioners that we have no testimony from at little rock family planning could acquire those skills the district court simply didn't address what those other doctors could do there was no testimony from them and they didn't bring this whole suit in other words the district court didn't do a current thorough enough job of examining the evidence before i think it's that's that's a nice way to put it your honor i think the district court simply decided to ignore the evidence in front of them i think that's the more fair characterization of what happened here  another your honor sort of hit on this part of the the just a court's conclusion here was that in the case of judge oxen if it didn't work one hundred percent of the time that dr hopkins was simply not going to use that there's some representations from dr hopkins that because if a doctor jock's an injection didn't work in that five to ten percent of cases where it might fail and actually we would argue that the record demonstrates that it's really more like two percent in the hands of a skilled provider who regularly uses that like dr hopkins but that you know your honor that's not our position our position is this is a facial challenge and because this is a facial challenge as opposed to an as applied challenge in the context of a facial challenge he has to demonstrate that a large fraction of relevant patients would have to forgo or delay and just recorded and find that a large fraction would it simply declare that because hopkins wouldn't perform these injections one hundred percent of women would would have to forgo it didn't talk about whether hopkins patients even represent a large fraction of patients because of course there are other literate family planning practitioners of the district court found in said it just asserted because hopkins wouldn't do it they wouldn't occur and one hundred percent of patients would be burned that's simply not accurate counselor at the blue mary injunction phase of litigation would you dress irreparable harm question and it would seem that to keep the status quo as the district court essentially has done might be an appropriate thing to do stage given the potential harms and risks that are are in evidence so what's the state's response to the consideration of a reparable harm so on this issue your honor at the district court when sort of weighing the equities in addressing irreparable harm referred to arkansas as harm from allowing these procedures to continue as whatever damage the fate the state might face i don't believe that's a fair characterization to refer to allow any procedure again that involves tearing the limbs off an inborn child so that it fully bleeds to death is whatever damage i think that damage of allowing that that uniquely barbaric procedure to continue to take place in the societal harms medical ethics harms that it causes the harms to patients good morning your honors and may it please the court three things are clear one constitutional protections for individual rights exist not to protect popular decisions but to ensure that within or individuals can make decisions even when others disapprove based on deeply sincerely held moral convictions to binding supreme court precedent places the decision whether to continue or terminate  previous ability pregnancy firmly within that circumscribe or three faithfully applying that binding president the district court here issued a scrupulously careful one hundred forty page opinion that based on findings that are not clearly the price of exercising a constitutional right arkansas may force the woman to undergo additional medical procedures that increase her risks and to undergo violations of her confidentiality it's court should affirm because i do anything else would described standard dini as the commonly used and generally accepted method the standard medical option the usual method and here is how the court opened its analysis of whether the partial birth abortion ban reached that method quote we next determine arkansas case the district court correctly found no basis on which to reach a different conclusion the arkansas law bans d n e which accounts for one hundred percent of abortions in arkansas after fourteen weeks the state's proposed method to fee dr nichols and also from the executive director advanced practice nurse practitioner of little rock family planning services the only dini provider in arkansas it was also based on what arkansas submitted a declaration from an arkansas doctor wyatt whom the district court found non credible and the alabama declaration of doctor because arkansas had submitted a declaration from an alabama case  trial testimony from that case so that the court below and this court could see why the alabama just for court found his testimony non credible arkansas has provided no reason why this court should be the first in the nation to reach a country conclusion doing so would require finding that the district court committed clear errant actual findings or abused its discretion it did neither with your permission i'd like to tick through four claims that the state makes and i'd like to go into those are true arkansas also asserts that purported medical uncertainty precludes the facial challenge and facial relief here that assertion likewise fails so i'd like to focus on the demise workarounds and then that medical uncertainty question but of course will work around procedures arkansas suggests and look at what it would really mean for women's medical wellbeing it is undisputed that there is no method of attempting to my eyes that is remotely well studied before eighteen weeks meaning no studied method at e standard d n e with out to my for decades standard d n a has been the widely practiced gold standard for a second trimester abortion the supreme court make clear it was a commonly used and generally accepted method the standard medical option the usual court found sufficient as an alternative income solace to justify a ban on a rarely used procedure there's simply no comparison with what the supreme court held was sufficient as an alternative to a ban procedure and what arkansas is proposing here so let's just go through it to jackson of the patchwork of additional procedure arkansas insists women undergo the only wealth that one is the jackson injection at eight starting at eighteen weeks that later in pregnancy and most occur it is undisputed that well over sixty percent of d n a in arkansas occur before eighteen weeks when there is no studied procedure there is no record evidence of procedures from seventeen to twenty four weeks and it is unclear how many of those procedures were at seventeen weeks means it's not done for eighteen weeks it's not studied there's no evidence that if doctors can't even get informed consent for it because they don't know what the failure rate is they don't know what the risks and benefits are because it's completely  he also said there are limitations on injections based on anatomy and that same page in other words there are women in whom you can't do it that is undisputed it is undisputed that it brings risks in the alabama declaration from two out of every twenty patients and that a doctor has no way when beginning the procedure to know whether it will fail in a given patient so parties all experts that all parties  low admitted and the district court found potassium of training as the district court found there is quote no credible dispute about the level of training required for potassium chloride the pinion at fifty one and there is no law to support that arkansas can require doctors to undertake years training in maternal fetal medicine to provide abortions furthermore the district court and its undisputed arkansas hospitals allow abortion only in the rarest of circumstances an arkansas offered no counter evidence arkansas does not  here so i would like to turn to the question of medical uncertainty but i am ready to answer questions about the medical exception i think we talked about  the enter so there are three reasons why medical the state's medical disagreement argument changes nothing i'm going to tick through them and like to go back first of all there is no medical disagreement on the relevant question do these demised work around impose medical risks on women there's no disagreement about that too even if there were disagreement whole women's health makes clear that that is not a free pass to legislate away abortion access the court said quote legislatures and not courts must resolve questions of medical uncertainty and it noted quote that courts retain an independent constitutional duty to review factual findings where constitutional rights are three even if there were a available as the alternative safe harbor for every patient by fifty us one sixty four the supreme court pointed to the three district court the head exam of the federal partial birth birth abortion ban that was a uniform finding it quoted the southern district of new york that experts testifying for both sides agreed d n e was safe so was only when determining that that band left standard d n e without eyes available and only when assuring that all sides agree that was safe that the supreme court then went on to the question about which there was medical uncertainty that question was whether the lack of a health exception condemned and otherwise constitutional underlying right the supreme court had already found this and it's constitutional because if only because it leaves the common usual method that is uniformly found to be safe it leaves that in place there for the underlying ban is constitutional now do we need to strike this ban because it lacks a health exception and in that regard the supreme court was looking at a small subset of women who would have used health exception had it existed and asked that question whether the lack of health exception imposed medical harm on that subset of women that question there is medical uncertainty and it was as to that question the supreme court said you know what as to those that subset of women you can come back with it with a pre enforcement as applied challenge as to women with certain conditions if you think they will suffer medical harm for the lack of a health exception that is entirely different different from the medical uncertainty that arkansas says exists here first of all they've banned the usual method they've banned the usual method of safe uniformly trusted methods that everyone agrees they for all patients the medical disagreement here i about whether fetal demise techniques are excuse me there is no medical uncertainty here there is no medical uncertainty is uniformly agreed these additional procedures bring risks are untested experimental and kindergarten when case it was decided is simply not the case that somebody seeking relief for himself and for other doctors including those who come a later is precluded from getting relief but the important point is that in  the district court noted that for three of the laws there were no legislative findings and so the district court said you know we assume these state interests should be legitimate she was quoting in you know in summary she found that there simply was no evidence that the laws further to state interest in a constitutionally permissible manner right that the issue there are constitutional ways that arkansas can you know express its preference for childbirth over abortion are constitutionally permissible ways for it to promote respect for constitutional rights and you say in the stand to further statute comes next year arkansas saying well that's barbaric to what they've banned is a commonly used universally accepted as safe method there is no state interest that justifies out and there that a doctor state that women do you know the sex of the embryo or fetus than if she says yes inform her they at if for abortion is motivated by that basis it's banned in arkansas he challenged only the requirement that before doing any abortion a physician and reasonable time an effort obtaining the medical records directly related to the woman's entire pregnancy history now arkansas defense of this law reduces to the assertion that it applies that the metal records mandate applies only to women is doing an abortion he knows is motivated by the sex of the ember a second one is failing to do the colloquy asking the woman if she knows the sex and the third one is failing to get those medical records so it's not ambiguous it's plain on its face sakit you don't the law your honor on which there were legislative findings this was the only one of the three and the legislative findings were in preventing abortions where the woman is motivated by the sex of the embryo but that's not an issue dr challenged right but the district court made a not clearly erroneous finding that there was no evidence of how this far ranging medical records search what actually further  and this law is extremely vague i only have three minutes left and would like to touch briefly on the local disclosure mandate dr hopkins and his colleagues take their obligation to report an friends their intimate contact gives rise to no suspicion of criminal activity this is a blanket undifferentiated requirement that applies an all circumstances you can imagine a sixteen year old married patient in the clinic with her husband being told yes well we're going to have to call up the police department where you live and tell them to come pick up this tissue and we're going to identify you as that victim and your represent the value of places on the embryo or fetus but this isn't it this law does not dictate any new method of disposal it does not affect the method of disposal it requires the doctor on pain of to surviving spouse then surviving children then surviving parent spencer vibing grandparents and so forth when more than one person has the right one person can exercise that when and only when reasonable efforts to locate the other folks who can saying just go ahead and do what you do but keep the tissue for five days that serves no valid state purpose i have lots more to stay and would be happy to answer questions but i see my time i honour's if the essential argument from the other side boiled down is actually an argument that even the district court rejected and that was because that this is the most commonly used form of second trimester abortion therefore the state m never regulated and may never enact any type of ban that wouldn't affect it even the district court rejected that argument the eleventh circuit likewise rejected the argument that merely because a law affects the most commonly used abortion procedure that does not render that well on constitutional so that argument already been rejected even by the eleventh circuit it's also important to note that despite all the descriptions here i i didn't hear opposing counsel really describe it any point how the burdens that they're alleging outweigh  interests here and nor did i hear any discussion about the standard that this to court articulated in jaggedly in the fifth circuit off the articulated reflecting supreme court precedent but going through the training to dismemberment the going through the three demise casey the mere fact that a law will prevent patients from have been in abortion pennsylvania's consent parental consent statute the mere fact that would keep some patients from having an abortion is not a basis for facial invalidity so what how many people must be affected because before it becomes a substantial burden to the women as a whole in order to raise a facial challenge or honor it would be as the fifth and sixth circuits of explain practically all women that's the standard that's consistent with with song is not practically all some is not a large fraction in the supreme court has made very clear that a law that that adversely impacts some is not enough in order to raise facial relief and that was essentially the conclusion here with respect to that as well despite the risks that means that he's already made a determination that those risks are not significant and that's what's required in order to allege that this is not an alternative procedure you would have to show that those resources are not given to us again this doctor's name was what dr said basically according to the state's analysis of the day that he will continue to perform just as you've been in the past and will not be in any way deterred from doing what he's been doing i think that that's i mean i think even though he's different not going to reform significant whether the district court determined that would apply to the drawers down the other way and contrary to your view even if we disagree what do we do again your honor they the district court still didn't find that a large fraction of patien here was the required total number down basically not mathematical but a factual determination of how many people are going to be affected by this i disagree that it's factual determination on or the question of whether or not there's a large fraction is a legal question and the district court did