you may proceed thank your honor and may it please the court john sauer appearing on behalf of the appellant's the state defendants in this particular case no injunction should have entered been entered in this case and in fact the entire case should have been dismissed for lack of jurisdiction because no plaintive had article three standing to challenge the s c requirements at the time the lawsuit was why old and nope no plaintive had a redress of will claim against the hospital privileges requirement on the at the time the lawsuit was file and i'd like to walk through the entities and the facilities they're seeking to operate as to both of the two challenges that are brought here a challenge to the s c requirements and a challenge to the hospital privileges requirement first there is the st louis based organization and reproductive health services r h or house which seeks to operate facilities in springfield and joplin but it is undisputed that prior to filing suit in this case r h s never applied for an available deviation from the s c requirements the evidence is very until they actually go through that deviation procedure as the district court found in the drama litigation ten years ago crediting the department's testimony that there is an available deviation procedure it's a collaborative process and that a meaningful opportunity exists to pursue sets of requirements in order to start operating these facilities in springfield in joplin but numerous cases all cite in our brief have said again and again we've got true regulatory obstacles to being able to do what you want to do and you bring a valid challenge to only one of your challenge to the other one is not redress a bill that is a core application of article three squadron of redress ability so r h are out there for lack article three standing to challenge the s c requirements lack any showing of redress ability could not possibly make any showing filed now i would turn out the kansas city based at a comprehensive health which is seeking to operate facilities in kansas city and columbia when the when the lawsuit was filed conference of health had been  party to a binding settlement agreement stipulating exactly how the s c requirements would apply in kansas city in columbia for ten years in the lower court they took the position that that settlement agreement was on a forcible it has all the agreement so now on appeal as i understand it they now can see that the settlement agreement is binding and it forcible and in fact they said twice in their brief on appeal that comprehensive health quote needs no relief from the s c requirements a facility or the columbia facility but of course if you can see that you need no relief from a regulation you are conceding that you were not injured by that regulation and therefore have no article three standing to challenge that regulation so i think it's in the light of the settlement agreement in the light of what i take the concession on appeal that they need no relief from the s c requirements because of the settlement agreement there's clearly no article three standing on the part of comprehensive city and its columbia facility as to the kansas city facility it clearly does not and cannot bring that challenge because there is an expression in the settlement agreement is exactly how the hospital privileges requirement will apply to the kansas city facility going forward and actually as of today it's in compliance with that particular provision of the settlement agreement so the kansas city facility is operating and has achieved a license independent of any relief of change from the district court in this case so there's hospital privileges requirement as to the columbia facility because the settlement agreement stipulates exactly how the hospital privileges requirement will apply to the kansas city facility but it's violence on how it applies  clear independent basis why that columbia facility could not obtain a license the day that this this lawsuit was filed and actually get over it on an ongoing basis after that because it page one hundred one of the joint appendix there is  complete relief from the hospital privileges requirement there are at least six different reasons some of them very substantial why that facility was in no position to obtain a license some of them that it failed to have in a court appropriate infection control procedure if failed to have a quality assurance program it had no agreements in place to assure that it could comply with the fetal tissue disposal requirements of missouri law it had two problems with its facilities and one of them the department says offered to comprehensive health you may seek a variance from this corrected those deficiencies before filing suit and it never thought it deviation from any of the due to allow it to comply with any of those deficiencies had it needed one which you probably didn't because it's now saying it needs no relief from those particular requirements  those are minor facilities and say it would be a waste of our time to correct these deficiencies that bar licensure intil we get relief from the hospital privileges requirement and of course an admission turns article three on its head in the case we said i would actually direct the court twenty eighth two thousand and sixteen if there is undisputed evidence in the record at that time there were independent reasons why the columbia facility could not obtain an abortion license and therefore their challenge of the hospital privileges requirement was not redressal at that time that there was no our there was no jurisdiction for this district court to act at all because no plaintive had article three standing to challenge either of the two sets of requirements that were an issue in this case but even if the court were to categorically refusing to consider the state's evidence on two critical disputed factual issues the question of what is the what is the actual physical risks or safety of abortion procedures in the state of missouri and secondly whether in to what extent these two sets of regulations actually promote women's health and safety by addressing those critical risk problems we presented there was a luminous evidence presented on written form there was no evidence you're hearing in this case but i think fourteen expert affidavit submitted by the parties dozens of journal articles much of what went to these two disputed factual issues the district court at the urging of the plaintiffs concluded as a matter of law that he need not and could not consider that  hour waiting period in wisconsin and after casey had been decided upholding a twenty four hour waiting period in pennsylvania and the state in that case at all if they don't get to put in evidence or relate a gate the validity of a twenty four hour waiting period because those are ok after the the only conclusion that would give wisconsin women a fair shake because not all states like pennsylvania and that is even more true hero allowing the state to put on evidence or to make its case to register court is absolutely imperative because missouri is not like texas it's geographically very different than texas and the case we have put forward the evidence we put forward includes voluminous critical evidence that was not put forward in the texas case i cannot emphasize enough that in the texas district court decision there was any a finding that texas failed to put on any credible evidence to rebut the plaintiff's case and that's fine it was reiterated by the majority opinion of the supreme court in heller stet missouri cannot ensure not be bound by whatever litigation decisions texas made in a prior court we are entitled to present our own evidence and make our own case unless the court has other questions at this time i'll reserve the balance of my time very well on good morning you are listeners may please the court most a koan on behalf of plaintiffs the narrow poem unary injunction which is on all fours with the supreme court's decision and whole woman's health versus heller stat the restriction of that issue in this case are virtually identical to the restrictions that were struck down by the supreme court in whole woman's health first missouri's hospital relationship restriction just like the rip the restriction in texas requires physicians to hold hospital privileges within a very tight geographical radius around a health center similarly misery's ambulatory surgical center restriction just like the texas restrictions struck down in whole woman's health requires that abortion providers meet specific physical facilities standards like minimum quarter with the minimum procedure room sizes and the like the supreme court holds that neither of those restriction advance women's health first as to the hospital relationship restriction the supreme court recognized and the record here shows that even when rare complications from abortion occur whether or not an abortion provider has a relationship with a local hospital does not affect the quality of care that patients receive that's because the vast majority of complications can be treated with a return visit to an outpatient health center and in the exceedingly rare case that a complication requires hospital treatment plaintiff's protocols ensure continuity of care and hospital based physicians and on call o b g y n are able to provide high quality care as the supreme court found a hospital privileges requirement also can't possibly affect p c care because it's entirely impractical the vast majority of abortion complications as the supreme court explained do not to rise until after a piece that has left the health center and gone home and still in the rare event that  recognized and as the regular in this case shows abortion can be safely provided in an outpatient setting similar to a doctor's office and this is standard practice throughout the country and consistent with the guidance of the american college of obstetricians and  s the supreme court specifically found that providing abortions in an ambulatory surgical center will not improve patient outcomes defendants only substantive argument in defense of the ambulatory surgical center restriction has been the false claim that surgical abortion raises the same health and safety concerns as other general surgeries but the record is clear that surgical abortion does not involve incision or an entry into a stereo sterile body cavity and only involves local an and the supreme court pointed to precisely those facts in finding the ambulatory surgical center to be restriction to be unnecessary turning to the other side of the whole woman's health balancing test which requires us to look at the burdens of the restrictions the burdens of the missouri restrictions are even more profound than what the burden than the burdens the supreme court found existed in texas and they're very similar burdens the record is one hundred percent clear that prior to the preliminary injunction missouri's restrictions for years limited a state of nearly seventy thousand square miles and that has a population of over six million people to only one abortion private provider located at the far eastern edge of the state just like the supreme court found in texas in missouri restrictions are preventing the majority of health centers in missouri that seek to provide abortions from doing so and as a result women are forced to travel very long distances to reach that one st louis provider and in missouri those travel burdens are even more extreme than in texas because in texas women only have to make the trip once whereas in missouri they have to make the trip twice and the distances and missouri are even longer than the distances the supreme court discussed in supreme court in missouri also talked about a variety of additional burdens for example the fact that women are were prevented from seeking care in their home communities of smaller health centers and they said that was a burden to women the same exact problem exists here so so it's very clear that in this case where we have the same restrictions that were at issue in whole women's health but even very similar in even greater burdens than existed in texas want to point out that the juggler decision does not stand for the proposition that we need to exist that we ignore the supreme court's decision in whole woman's health the district court here followed whole women's health as has every other court to consider ambulatory surgical center and privileges restrictions and in fact those restrictions have fallen in at least five other states after texas including for example mississippi louisiana and alabama women's health did not require the sort of numerical estimates of the women affected when by report abortion restrictions that jugglery would require when faced with a situation of overwhelming burden in the state where restrictions would shut down the majority of health centers and force women to travel these very long distances instead the supreme court and whole women's health based it's a new burden holding on the burdens that i've already articulated the fact that the the restrictions were shutting down the majority of health centers forcing women to travel long distances preventing them from teen in care at small facilities in their local community communities etc and the court the district court here did the exact same thing it found that the the four facility is that plaintiffs seek to operate are being prevented from doing so by the restrictions and as a result women in the in the columbia area the springfield area the kansas city area and the joplin area all are unable to access care in their home communities the district court also talked about other similar burdens to texas for example that the missouri seventy two hour waiting period was compounding the burdens on women the district court also talked about the fact that when safe and legal abortions provided by medical professionals are unavailable that that creates actually health hazards for women and so in this situation where we have such a similar burden situation to hold women's health the district court to not abuse of discretion in in finding similar burdens here i also want to know that it's very important that were we're talking about a preliminary injunction here and so given whole woman's health and given the record here the record more than adequately supports the conclusion of likelihood of success on the merits in this case so even if this court would ultimately hold that generally on the merits would require the district court to make numerical estimates of the number of women affected that certainly should not be required for plaintiffs to show me or likelihood of success when we have whole women's health as such direct and binding guidance as to these particular restriction i'd like to turn to some of the jurisdictional arguments raised by mr sour first on this issue of waivers and the waiver process that exists for a portion of the ambulatory surgical  requirement that the district court properly found that the claim that was pled in this case in the complaint which was a claim to be a was a claim that the entire in built or surgical cent of that particular claim even if there were a workable waiver process here which i'll address momentarily if plaintiffs had gone through that process that would have nothing to do with the claim that was plugged which is our pla required to be swept into this ambulatory surgical center scheme following whole woman's health and so that claim was certainly right and the state's argument that that that problem then created a regional stability problem for the privileges argument hinges entirely on that waiver issue and as i've just explained that's just not that argument just fails i also want to touch on the settlement agreement that was entered in the importantly plaintiff r h s was not a party to that litigation and so even if mr starr were correct that that settlement prevented point of comprehensive health from having standing in this case it certainly does not prevent that that given the history here that that's just not the case for example mr sauer talked about the kansas city hall center and said that that it is now in compliance with the restrictions that's true but it wasn't playing with the restrictions in january of tw seventeen and alerted the department of health to that fact but the department of health wouldn't even talk to that more and didn't issue a license and till september twenty seventeen after the pollution area injunction was issued so it's clear that the court intervention here is what we're really finally got that process moving along i also want to talk about this this is this argument mr sauer made that there is no redress ability for comprehensive health on the privileges issue because of  deficiencies in inspections that occurred in the fall again the claim that was pled here is redress the bill as to the small deficiencies don't affect the redress ability of the plead it claims in terms part of the issues were part of the ambulatory surgical center restriction so i don't really see how those those k'nex but nonetheless those deficiencies have been corrected as those licenses have been issued i also want to briefly talk about the district court's consideration of the evidence in this said that it considered the evidence to the extent appropriate but that the evidence could not support a departure from whole woman's health and that is completely consistent with the supreme court's law and the law this circuit is very clear on how this this should work and there is a very helpful excerpt actually from this court's decision in car her first going sols which i would point the court to that's at four thirteen at third seventy one beginning at page seven ninety nine court talks about different kinds of fact finding that courts can do and talks about adjudicative versus legislative facts and explains that legislative facts are those that have dealings beyond the specific parties to the suit and says that the medical particular abortion procedures which was at issue there clearly falls into this latter category as such procedures are either sometimes medically necessary or they're not the answer to this question does not vary from place to place or from party to party and that's the very same sort of issue here the safety of abortion and whether these particular restrictions benefit patients or make abortion safer our legislative facts that don't vary from place to place and party to party and the court here in car went on to say if the issue is one of legislative fact it's unsound to say that on records similar in nature or one law a law could be valid in one state and invalid in another and mr mr sauer did not touch on is the content of the record here the content of the record here shows that the facts in missouri are just the same as the facts in holeman tough just to take one example in the safety of abortion the whole women's health court relied upon a study that found that the overall complication rate from abortion is two point one percent and that is the study that actually was relied upon by the state's experts below the evidence in this case shows that the overall complication rate from abortions in missouri is point nine one person  a lower rate than what existed in the what the supreme court relied upon in texas the state also presented no evidence to show that either restriction either reduces the frequency of abortion complications or improves how they are treated and so at as i've said i don't think any of the claims suffer from a lack of standing the state's principal arguments on that are the waiver issue and the settlement agreement issue and as i've explained the the waiver issue is not the state's not looking at this correctly and that the pleaded claim was about that the ambulatory surgical center restriction as a whole the district court in its equitable discretion crafted a much narrower preliminary injunction that goes to only the physical facility requirements of that facilities in springfield in joplin to operate a great deal this constitutional controversy would never have come before the court so there is this through and then what would happen if they if they went through it and they received a deviation from that that allowed them to operate those been given or compliance exactly right there are three instances in which deviations were given for example in this settlement agreement the kansas city facility received a complete deviation from all of the physical plant requirements of  the of the entire regulatory section because it was doing only medication abortions in kansas city colombia was doing surgical abortions and what happened was the department in two thousand and ten agreed to waive the vast majority of the sort of more bur statutes permit them to certainly some if not all of the cost might have been obviated if they had pursued the deviation process i will certainly  and go in through that deviation process and that's exactly what the drummond case did the drummin case in two thousand and seven when there was a westerly judge sachs didn't find that persuasive he actually says things in his opinion that address that he says well there's political pressure on state officials from the opponents of abortion that might influence this outcome i think was totally improper as a matter of law to do for him going to present as a matter of fact i would there is certainly no evidence submitted to there's no evidence that he could have made it  cases submitted and will go on to the next case after we take about a ten to fifteen minute re