it please the court my name is eric caller and i represent the defendants the monk emory district attorney daryl bailey and the attorney general of alabama steve marshall your honour's our contention is that this case should have been dismissed on both standing and sovereign immunity grounds with respect to every one of the claims advanced by the plaintiffs save one which is the provision of the alabama biased bypass statute which pertain specifically to the participation of the local district in those bypass proceedings but that provision in itself is we think completely innocuous under bloddy to you and that it in no way imperils the effectiveness of confidentiality or expeditious pnas of the bypass proceeding and i ask you a procedural question first before you dive into your jurisdictional and merits arguments in your brief you cite in part two factual information that the defendant put into the record with regards to how this statute has been implemented or applied in the last several years when i thought that both sides told the district court that this case was amenable to it through a through cross motion for judgment on the pleadings which means you can't go outside the record the four corners of the complaint so judge showed i don't know how you want to to look at that information that you were alluding to in your brief if at all i think that our position below was that on as a matter of a judgment on the plea to we could win with respect to that but they could not and would require evidence to flesh out their position with respect to their facial challenges as to whether that can be considered with respect to the judgment on the plains our position is that that evidence would only be relevant with recent consideration of their claims with respect to consideration of ours our position is that the statute is facially constitutional so you want us to look at it a little bit or not look at that information at all so we think that this evidence is really the only thing in the record that could potentially be suggestive of the underlying policies and the way this is implemented by the alabama bypass courts i don't disagree with you but if the case was submitted through cross motions for judgment on the pleading how are we supposed to look at evidence outside pleadings so to the extent this court and tends to disclaim reliance on that evidence then we think that only saying i don't want to i don't know what is not us disclaiming reliance on the evidence i just want to know how you propose that we look at that evidence given the procedural posture of the case if you think that there's a way for us to review that evidence great i want to know but this case is on on a ruling based on cross motions for judgment on the pleadings i'm sorry i my understanding was that we had for summary judgment with respect to our position for a judgment on the pleading respect their position which would enable consideration consider and again i think to the extent that evidence is found to be wanting in this case i think that ultimately supports our position in that this is a facial challenge and with respect to most of these particular claim to van david the only way in which we didn't know whether the facial challenge alternately suggests that the proceedings are operated in a way that is not confidential that results in revelation the miners identity to the public or that the proceeding operates in a manner that is not expeditious would be if we had additional evidence but because we motion for a motion for judgment we don't have that evidence which means there's not sufficient grounds to grant a facial challenge in this case we don't have to look at it in order  your argument is that the only thing one could consider in the absence of evidence and this is supported by say the fourth circuit's this in any behind the fourth circuit decision that campbell us is that the statute facially in and of itself constitutes a violation of confidentiality or that there is no way that the statute could be administered in a way where it could conceivably operate in an expeditious manner there's no indication that that's the case on the for a district attorney to participate in a bypass proceeding that is nowhere on the face of bloddy two and the logic of the law to an akron to confirm that nothing about that the participation of a district attorney would be offensive under those decisions what district attorney's role there is to ensure that the bypassed court has sufficient evidence to render an effective determination and that's exactly what the statute defines the district attorney's role as i don't understand that language reported one of the one of the d a do judge does but the district attorney is there to ensure that the judge is presented with adequate evan in order to get one if he thinks it is not a sure and one of the day i am doing as you say it is not persuaded that he thinks he shall not get it o the district attorney would be entitled to suggest to the bypass court that the evidence does not support a determination that the minor is sufficiently mature or that the abort in the minors best interest but the final determination but he's an advocate that the district attorney is not necessarily an advocate it depends upon whether the district attorney determines in their own judgment whether the evidence is sufficient to support granting the minors petition so in some circumstances he in the same way it has played out in the past and how bama it where it is essentially an inquisitorial proceed and the judge asked the relevant questions and typically as the alabama courts have recognized if a girl is even seeking a bypass she will have sufficient indeed maturity to be great for that request to be granted and in those cases the district attorney may play no role at all or the district attorney may conclude your honor this is an obvious circumstance which the girl is there so there's no reason how can you say that about the guardian ad litum act so that you tory directive is to represent the interests of the fetus so how can a guardian ad litum representing the interests of the fetus whose only interest is in life i would think ever do anything but oppose a petition we would concede that in all but the most unusual circumstances if a guardian ad litum is appointed that guardian ad litum will take on an adversarial posture and the sense that they will why is that not an undue burden i think it i mean you've spent you spent five minutes trying to explain to a chicken botham why the district attorney given his or her neutral role in ensuring the viability of the process isn't a problem now you've got someone who are appointed is an advocate on the other side you don't think that's an under the burden problem in this context we believe that what constitutes an undue burden is articulated b i know but the law to doesn't address this farce factual circumstance and we've got this case before us so i want you to tell me how it is that an advocate who you said i think will always be arguing against the petition doesn't constitute an undue burden as lambert b work and indicates the bloddy two criteria are supposed to be the criteria by which  bypass procedure is judged for its constitutionality we believe all of those criteria are satisfied with respect to the guardian ad litum and really their position why that doesn't tell me anything their position that this cannot be in any way an adversarial proceeding actually derives from justice blackman's dissent in akron to what bloddy to know what i want you to tell me how again going back to what your chicken bottom said about how this plays out in real life a and alabama courtroom if you put an advocate in there to litigate against the minor who is seeking a judicial bypass how is that not an undue burden on the exercise of the right to terminate a pregnancy i think to the extent that we would extend the law believe that if that's if you think that that's not a problem then you shouldn't be you shouldn't be characterizing the attorney the  district attorney's participation as that of a neutral player just making sure the process works out correctly because he can be an advocate too so the district attorney's position varies depending upon the state of the evidence but the guardians doesn't that's correct in all but the most unusual circumstances and we think that that's consistent with the law the two because nothing in bloddy two attempts to specify in exhaustive detail the shape that a bypass court must take all it says is there for criteria those four criteria are satisfied in this case because the first two criteria that the petition must be granted in the event that the miners if it is in her best interest is secured by the fact that the person remain confidential in character and i think that the mere fact that there are additional parties requisite to the operation of the process and that's the way it's worked in alabama for two decades does not in any way court reporter the miner and her attorney they would not have articulated a standard if they meant to lay down a rule so i think the operative conception of confidentiality in akron to permits all of this  minor makes a mature decision with respect to whether or not she's going to have an abortion or that the statute might go a little too far because it doesn't protect her minors confidentiality because it opens up the proceedings when asked a obvious check against the emergence of this horror story where teachers and friends etc are called is just that they wouldn't be enough time to bring in most witnesses and the only witness that we have in the alabama  the proceedings as a neutral advocate to protect the process and the granting of appeal rights to certain this is that it didn't they didn't add the guardian as a representative for the fetus there was no there was a statutory provision that allowed that before rule seventeen c of the alabama rules of civil rights there was no statute before that allowed that right to run but the pentagon's and then you have to it you have to concede that operative so really what they're trying to paint a picture of is that this is some radical change in this will change the face of how abortion operates in alabama that's simply not the case because what this statute does primarily preexisting powers that have been exercised by the alabama courts in order to transform the bypass proceeding into something other than rubber stamp and that's what bloddy to that a rubber stamp you've got a judge there who can say this minor is not mature enough to make a decision what can we trust the judges in alabama to make that decision without turning it into an adversarial proceeding absolutely judge with the bulls and i think in the the normal case bare fact that a minor is able to avail herself of this procedure indicate that she has sufficient maturity and that's what the alabama case law bears out but what led to this was that alabama judges found and this is cited in numerous cases in the alabama courts that in some cases they found the testimony perhaps rehearsed or in other ways but not so much as we can we can confine and we can trust judges not i mean that's why we have judges to make determinations right absolutely and all we're really asking is to ultimately trust the judgment of those judges that they needed a process that was more robust but under the bonnet of the prior statute that the judge can can decide himself or herself i need more information right now under the prior statute i need more information in order to make a decision about what a minor is mature enough to make a decision so i don't have time especially taking to get to the judge's generic powers under the rules of evidence and civil procedure almost everything that the current statute allows them to accomplish they have failed themselves of those powers suggesting a need for some kind of codification and that's really all you see the da as neutral and not an advocate that's determined by the alabama court of civil appeals and that's the role fixed by the statute so there acts the state courts exercise a statutory interpretation which this co provided the court with its real use on whether or not the petition should be granted yes but if there is then that is when there's the then the ca is an advocate for that position whatever that position may be in one case it may be i'm in favor of the position of the petition another want to maybe i'm neutral and the other one maybe i'm opposed but again there is no indication in any of the precedent advocating that you cannot have an officer of the that's a different advocate either for the granting of the petition or for the denial of the petition depending on what the evidence suggests that's the role of the da so to an extent that they're ultimately advocating that the court get it right yes they can be described as an advocate but they are not advocating but getting it right getting it right only in their perspective yes i mean it's not it's not a judge just put all the evidence in front of you now you make an informed decision and whatever you decide fine that's not what the da is simply doing the purpose of that however is simply to give the judge a perspective other than their own so that they can be confronted with the possibility that they might be wrong if he wants to make sure the judge gets it right there any limit on the number witnesses or quality of they can get better testimony than others about how mature she live in the statute is the standard of necessity the court has to determine that it needs additional evidence and that that witness would provide that additional it's highly unlikely that under their duties under the supremacy clause but before the amendment but judge decides that he or she leads information from another witness the judge can make that decision does have the power to make that decision and i think that that incident of authority would be essential for the bloddy proceeding to be anything other than her pure rubberstamp founded on nothing but the girl's own testimony which in some cases where she's clearly mature enough that's the run of the mill case i'm sure that will happen  implicated in the disclosure of the existence of the bypass proceeding to that if the parents learn of the bypass proceeding then the parents can intervene they can notify the court that they want  it says although the court shall not be required or permitted to contact the miners parent parent or legal guardian in the event that the minors parents parent or legal guardian or otherwise aware of the bypass proceed they he or she shall be given notice and be permitted to participate in the proceeding and be represented by counsel with all of the rights and obligations of any party to the person so it is not over there is no  classified it still operates as a bypass in that their consent is not determinative right they do not exercise any absolute veto alternately the decision lies with the judge and really we think that this is all to get to cross examine if they learn of the proceedings and they become parties then they get to subpoena witnesses cross examined put on evidence and then make their position known to the judge as well in the circumstance where nonstate what is this how does that work we have no evidence either way about how the participation would operate except for the declarations that are in the record on that but under alabama law bypass to notify the authorities in the event of some kind of crime of that character so this notification to law enforcement authorities was going to happen regardless of the statute did there was a name for the statute so much of our lives don't change anything but because ultimately what they're trying to do here is it would be the equivalent of if you brought suit jane the constitutionality of alabama's hearsay law and said well we're going to file a suit against the district attorneys and the attorney general's bait in something of this character and other words there's a there's a big difference between that hypothetical in this situation because in this situation the minor has a finite period of time requested was a declaration that would only be applied to the district attorneys and the attorney general's we had nothing to do with whether the state bypassed courts decide to continue to appoint guardian ad li that under under under an ex parte young theory who do you sue even even if you had even if you had an as applied challenge to under an ex parte young theory the problem is not that they had the wrong defendants the problem is that they didn't bring it would just issue bill claim because they didn't request relief i thought you had made the argument that these were not proper defendants that are it is chilly understood in the following way under ex parte young there needs to be a connection between the enforcement of the statute and the party you're bringing suit against they bring a claim against various parts of the statute which we have nothing to do with be unfortunate and cannot make the state courts and any sense comply with the district court's order on no matter how diligently we attempt to apply federal law and to obey this mandate that we receive from against it all right this is crazy if that if i if if a hypothetical state law said when you want a minor seeks a judicial bypass everything shall be open nothing shall be confidential and the court and its employees shall see you have to see the attorney general because the attorney general is the person who is in charge of enforcing state law but your hypothetical the attorney general has no role in the enforcement of that because they're not tethered to any criminal prohibition the attorney general enforces the state consent requirement the attorney general does not enforce the rules for which parties can be party stooping or not who's a chief law enforcement  alabama hi but this flies in the face of this little who isn't in summit medical associates the prior where this court said you cannot treat the attorney general or the governor of a state as a generic party that you can sue any time you want to litigate over state law the fact that they don't have any role so who do you sue in my hypothetical i would think that you would have to either make the argument which maybe would be untenable that ex parte young allows a suit to be brought against a state judicial officer or you would have to go into state court and raise a challenge there and again the presumption here is state courts abide by the federal constitution so there's no reason why they wouldn't see such an obviously unconstitutional statute as unconstitutional that would be struck there are there are there are there are times when the supreme court has disagreed with state courts view of the constitution absolutely as though it's not necessarily the case through that exact path where if that challenge were raised in the context of state proceeding and say the state courts are absolutely insane they say yeah whatever we're going to completely disregard the law the to the supreme court would immediately reverse them but the problem is ex parte and young does not grant a license to just the attorney general or the governor of the state any time you want to challenge state law that the whole theory of ex parte young is if as officer of the state is enforcing a state in a way that is a guardian ad litum for the fetus we can tell them not to do that we have no way i mean it may mean it may mean that your ex parte young argument goes so far but it may mean that your ex parte young argument can go all the way right so we would concede that the ex parte young argument defeats only their claims with respect to all of the challenge provisions that don't involve enforcement by the d n a what involves an foresman by the da which was declared unconstitutional below is just the provision involving d a participation so we think that proper outcome we here would be on sovereign immunity or standing dismiss all of their claims except the one with respect to d a participation and then we would be the avenue of procedural for them to challenge so the proper avenue for them to challenge those provisions would be to sue to seek a declaration that the criminal but enforcement prosecute them for performing an abortion where there was no bypass authorization if they asked for a declaration that that provision was unconstitutional then this would be a sad body too when there would be no standing or sovereign immunity questions with when it could not make you know your own i'm sorry if there's any confusion here it really just results from the fact that this this case is posture is extremely unusual because they didn't sue for a declaration that the right  the statute was unconstitutional in order for them to bypass ex parte young and actually have a suit against us with respect to every provision of the statute other than the one we  otherwise they're just saying these state court procedural rules are unconstitutional and that's an advisory opinion with respect to all of those provisions because we don't have anything to do with them they're declaratory relief really doesn't solve the problem because state way in which these suits are done by default which is you sue for an injunction that the actual parental consent requirement the requirement that lays a duty on them to not perform an abortion and the absence of the bypass is unconstitutional there they would have standing and there would be no sovereign immunity problem because they would be suing us with respect to a provision that we actually enforce as a result so all the all the people look all the cases that are permitted abortion providers don't have standing to bring these challenges have been brought up within the context of an injunction to our knowledge that is the case and if there is any case that is an exception it is probably because this argument was because this argument really ends up requiring you know i want to think through what he thought that the ramifications of ex parte young and how it really operates and the fact that because we aren't enforcing any part of the statute other than the one that concerns our own you performed an abortion there was no order from an alabama court permitting that no matter what no matter what the procedures or like of an alabama judge says you know what i'm not enforcing any of these procedures i just want to talk to the minor and then make a decision on my own about whether or not she is mature enough and it's in her best interest and then decide and issues an order you have no standing to prosecute criminally and i'm sorry i'm not sure if i understand a judge an alabama judge you gut this statute by refusing to enforce any of its provisions except the ultimate judicial bypass requirement and the minor gets assigned order right without any of these procedural requirements being followed no d n a participation no guardian ad litum appointed parents find out but they're not allowed to be party no presentation of evidence  seeking monetary relief from the form of damages so the form of relief sought here doesn't the fact that just disability of the case our argument does not turn on the written the form of relief requested what are  said that they didn't seek injunction against the criminal penalties the point is that they didn't pick the right statute because they didn't choose the statute so there are some things you're saying that can't be challenged stand they challenge certain matter that the provision that says you must have parental consent or judicial authorization is unconstitutional because there is no constitutionally adequate bypass so they could make the same arguments and challenge the same provisions but they didn't go far enough they could go back tomorrow and file or another group of individuals or providers could go back and file a lawsuit go says ok we want to go one step further instead of going seventy five percent we want to go one hundred percent and i would reform that would be a just to shovel controversy you think i absolutely it would be a different case because they would be bringing a new claim they would be saying you are bypass unconstitutional needs to be struck down and we would want the opportunity to litigate against that and that and in that scenario the district court would face the exact same questions its face here would your questions ugh severability it decided that some of the provisions didn't pass constitutional muster and you'd be back in the same place you are today you would have a court saying yes you can require a court to authorize a minors termination of a pregnancy yes you can have notification to the da no you can't allow the da to participate no you can't have the guardian representing the interests of the penis i'll let these things stand and that constitutes the remainder of the additional bypass statute and the rest are gone you'd be in the exact same position you are today arguing about whether or not the district court got the constitutionality holding right and if it did it whether or not it got t entered the low in the relief they requested cannot possibly remedy their injury which is they can still be prosecuted for performing an abortion on a minor who did not go through this bypass proceeding because she deemed consitutional no but that's not the only injury you're thinking that's the only injury you're thinking criminal prosecution is the only article three cognize of the injury and that's not necessarily the case they are claiming is that they are litigating their own injury which is the threat of criminal prosecution to the extent that they would invoke third party standing argument that that in the being speculative because we have no idea wh there i know and you just said you don't know if there are lines out there for and you've cited cases showing that there are minors out there and you've cited cases where the minor has appealed the denial of a bypass and you've cited cases where the da has appeal of evidence this discretion exists there for some this injury made on some plaintiffs who would be our patient so while there are girls out there we have no idea if their patients clinic and they did not attempt to develop this argument because they weren't pinning their case on third party standing in their brief their argument is we have conflated their position and we have said really this they're all they're relying on the injury to the plate to a patient when the way their brief is framed is they say that's absolutely not what we're saying what we're saying is this injury comes on us because we could be subject to criminal prosecution and the problem is the relief requested doesn't redress that injury at all provision of the statute the statute that says you can be prosecuted if you perform a bypass without judicial are you perform an abortion without judicial bypass for a declaration that that provision of the statute was unconstitutional because there is no constitutionally effective bypass procedure at which point they could litigate their arguments about these procedures rendering the bypass  exactly the way akron two or bloddy two worked where ultimately they say the parental consent requirement is invalid because the bypass procedure is constitutionally defective that's what they would need to do in order to bypass sovereign immunity and for the relief to actually address their injury and that's what they did not do and that's why this court lacks jurisdiction with respect to all of the provisions of the statute one tha transforming the judicial bypass procedure from the ex parte system that is used in every other bypass statute in the country in every other bypass statute that's ever come before any court into a trial where the team may face lawyers representing the interests of the state her fetus and her parents this law i think the law the strict standards and the judgment below should be affirmed i'd like to turn briefly to the just disability arguments that have been raised in this case because this case is plainly just  shovel and judge jordan you hit the nail on the head when you pointed out the irony that the state of alabama is arguing here that the district court essentially didn't invalidate enough of their parental consent statute there their argument is  essentially that they would rather have no parental consent statute at all than the district courts narrowly tailored precise relief of going through the unconstitutional provisions of this law figuring out which ones are unconstitutional declaring them unconstitutional and severing them from the statute but to be fair to his position i think his position is a little bit more nuanced his position is that again according to his view that the injury that you  was the potential prosecution and that's the injury you asserted then the only way you can try to remedy that injury had standing and make this justice is to try to se allegation a statute which you think because of its requirements and violates bloody two and he says you haven't done that as a result you don't have standing and that there is a pleading deficiency in this case that we didn't identify the very specific criminal provision in the complaint and that's what deprives us of standing here it's not that judicial didn't lead problem we the what is sought in the complaint the specific relief identified in the complaint doesn't foreclose the entry of appropriate relief that redress is a plaintiff's injuries this is evident from federal rule of civil procedure fifty four c which says that a final judgment should grant the relieved which each party is entitled even if the party hasn't demanded that relief in its pleadings and so if they are correct which we don't think they are that there is that we ought to have mentioned that criminal provision in our in our complaint as a condition for obtaining relief federal  procedure is clear that there is not that kind of pleading deficiency concern and the supreme court has made clear in citizens united and and holden's health that it doesn't turn on that there is no bar on the specific nature of the behalf of our patients and can't assert their injuries here and that's fundamentally incorrect but the whole premise of this case is that we are standing in the shoes of our patients asserting their rights and so while we  penalties at issue here we are also asserting the rights of our patients and those those rights and the injuries that they face are plainly non speculative they are as as the this is but his again this is i'm characterizing his position his position is that you did not seek to assert the rights and injury to your current or prospective patient i would respectfully disagree your honor we are asserting our patient's rights here that is the premise that is why we are allowed to stand in the shoes of our patients here and assert their claims in this case if you do that in the district court whether in your complaint or in their response to or in your motion for judgment on the pleadings i think in our arguments are right when we read the reparable harm section of our complaint certainly would be irreparable harm we are speaking about there is replete with details about how this law harms our plaintiffs our patients by subjecting them to an unconstitutional bypassed by violating the confidentiality those harms have been in this case from the outset and were pleaded specifically in the complaint and were relied upon in the complaint before the district court and before this court is there is there prior precedent that you rely upon argue that you can  assert these claims on behalf of your patients i think this is standard operating procedure on her from bloddy onwards that we are asserting the claims of our patients in a challenge to the judicial bypass so so so the injury that you're alleging is too f the threat of criminal penalties and the harms visited upon our patients and i'd like just to clear up one point if i may which is that the court shares any of the considerations raised by the other side about the capacity of the judgment below to redress our harms it's not a standing problem in this case it's simply a question of what's the right remedy because the district court in its motion to dismiss decision recognized that it had two options in front of it it could atory judgment below isn't doing its job the parties can come back before the court raise the matter and and revisit the question of whether injunctive relief is necessary and so i think the district court's approach here ought to be lauded in that it was attempting to follow the supreme court's guidance in ayotte not invalidating more of the legislature's work than is necessary carefully tailoring the solution to the problem and it was doing what other courts have done in this context like the circuit decision in taft which similarly confronted what do we do with the cases supreme court cases that say if there's only a chance arm let's say there's only a chance that the abortion provider might face criminal penalties where there is a their argument based on clapper which is essentially that in that case the supreme court confronted a five step chain of contingencies where plan just first of all we're not regulated by the law in question and in order to be to have their communications swept up in five years at which they were challenging they had to posit a five step series of events each of which was contingent in order for the injury to happen this is nothing like that for a number of reasons the first of which is we are directly regulated by the statute as are the patients whose claims we are representing in this case write the criminal penalties regulate our conduct and the provisions of the bypass affect our our patients and so this is not the kind of case like clapper where you have to spin out a series of speculative events in order for the likelihood of harm to  r and so as the third circuit made clear in the eichel case clatter and this discussion of chains of contingencies is simply an applicable when you're talking about a law that does regulate their conduct and then just one other point about the third circuit's decision and i  characterizing clapper the third circuit made clear that clapper arose in a unique context of national security considerations where separation of powers separation of powers concerns are at their height and it would be a mistake to apply too it's not mandatory but if i may it is not the case that a plaintiff lacks standing in what is the event that the statute says is mandatory in all circumstances and i would point your honor to the supreme court's was unconstitutional under the statute that was sufficient to a court standing in that case and so even when a law authorizes but doesn't require unconstitutional activities on behalf of bypassing courts but lottie makes clear that standing is appropriate in this idea of speculation doesn't foreclose standing and certainly we are not talking here about a five step chain of contingencies we're talking about at most a one step chain of contingencies the district attorney participates in every judicial bypass proceeding and and so if there was a different statute that merely required notice to the d a and allowed him or her to observe the judicial bypass proceeding without your honor yes because it would violate confidentiality is our claims are three part one of them but you can't have full confidentiality i mean the person who at the clerk's office who takes in the petition knows that a petition has been filed the judge's staff knows that a petition has been filed the judge knows that a petition has been filed right so you can't you can't have utter confidentiality in a judicial bypass proceeding some people have to know under a duty of confidentiality that a minor is seeking a bypass right so what is it so what is it that makes facially not as applied no it is to the unconstitutional confidentiality standpoint the rule is confidentiality and you're right that it's subject to certain limited exceptions and what's the limiting principle of those exceptions what we look to act on to and what akron to said is it's an administrative exception for necessary administrative staff just like what you've just described so in akron two what was required is the teen write her name on a court form that might be seen by administrative personnel and the court said so this is a different procedures exactly as your honor is describing require somebody the courts the clerk's office staff the court the court reporter to know but it's an administrative exception and you can appoint a guardian ad litum without violating confidentiality correct and that's another party right so there are essentially two exceptions there are advocates on behalf of the minor in order for the minor to have a fair shot at getting the procedure right that the minors entitled to an attorney the minor is allowed to have a guardian ad litem for the reasons stated stated by this court in miller which is precisely because it would help rather than hinder the process and the only other exception that the supreme court has recognized is act runs exception for administrative it ministry of necessity and how do we know that this alerting the district attorney doesn't fall into the category of administrative necessity well first the district attorney doesn't play an administrative role but it's certainly not necessary because we know that every other state in the country with a judicial bypass statute operates without transforming it into this is departing from your hypothetical but a trial or without requiring  applies here if alabama is correct that the district attorney is nothing but a potted plant that sits there and doesn't do anything then why do we had the need to depart from what the standard operating procedure has been in every judicial bypass law disagree your honor because that is already built into the bypass process itself the judge is not if a judge is confronted by the testimony of a teen that feels rehearsed or that he's somehow doesn't meet the team's bur that the bypass court should consider these specific things that the minors should testify about as in disha of her maturity or if the state of alabama wanted to define best interests in a certain way i think that that  constitutional muster but what the statute already does is say but before this law took effect a minor in order to obtain an abortion has to satisfy the judge by clear and convincing evidence that an constitutional in miller as this court made clear was because it would benefit and aid in the minors facilitate the minors access to abortion rather than hindering it that was this court's decision to miller but we don't have that in alabama prior to the correct a requiring the appointment of a guardian ad litum for the minor under alabama law is that in the hypothetical i started with is the problem one of confidentiality or a different sort of undue burden if the very presence of the district attorney violates confidentiality for the reasons we've stated that it doesn't fit within the narrow exceptions it also if the court concludes that it falls outside the confines of the body factors it could very well constitute an undue burden for different reasons is so straightforward under bloddy again bringing in third parties bringing witnesses bringing anyone into the proceedings other than the minor is not is not how any i have ever been except you get except you can have guardians who may not you may not always support the minors position no your honor i actually think under miller the way this court construed by the guardian ad litem provision in miller is quite to the contrary the the always to facilitate a miner's abortion decision that was actually the premise of this court's decision there so it wasn't as though the court accepted the characterization of the point the plaintiffs in that case had actually argued look a guardian ad litum could dismiss a guardian ad litum i disagree with the minor and the whole reason why this court upheld that provision it because it actually disagreed as a statutory matter and given the role of a guardian ad litum and that unique considerations at play in the bypass process the court stated it will always be in the interest of the minor to proceed and it's the guardian ad litum job to facilitate that so i think i think respectfully that it's not the case that a guardian ad litem might sometimes not advocate on behalf of the minor if if  bypass is that first of all it concerns only with the minors interests and also if the minor doesn't satisfy the court if the if the court raises the exit if the bypass court has the same questions that your honor does  information record or hansen's coming no your honor i believe it's coming from the minors testimony so the minor is the person seeking a judicial bypass the minor with an attorney proceeds in the court testifies before thinks well gee i'd rather an involved parent go through that that's the minors choice and if the minor decides she can't go to tell a parent then it's the minors prerogative to go to court and the clerk's office at the court gives her the forms and helps her with the bypass process and she's given an attorney who walks or through what the procedure will involve in the minor testifies and it's really up to the bypass judge to decide has this minor satisfied me that she's put forward sufficient proof that it's that she's mature does she know what an abortion entails is the right decision for her what is the indication of maturity and again if you look at the decisions from alabama courts that were cited by the district court in this case denying bypass petitions courts have not hesitated to reject the petition of a minor who didn't satisfy them so if you know if the minors that i get i got good grades and the court said that's not enough you haven't proven it to me they haven't hesitated to deny the bypass petition and same thing with appellate courts in alabama have remanded to t bypass court to say we need more proof here more rigorous proof that they that the abortion is in the minors best interest and so right it's an important decision of the state of alabama feels like we were going to make any mistakes in the state of bypass courts responsibility to determine whether or not the minor has satisfied her burden of proof and if not the court should deny the petition and she can come back or she can tell her parents or she can forego the abortion altogether but the presence of the district attorney and again the language of the statute is clear the district attorney is an advocate for the state of alabama district attorney can pursue its interests in advocating on behalf of state of alabama with a number of tools extensive tools at its disposal through appeals which frustrated i mean this is this is the irony that the characterization on the other side bet that the district attorney is nothing but a adjunct or an assistant district attorney appeals but of course determination that an abortion in the minors best interest and you know that's happened in the case of cited in our brief where there was a twelve year old miner who had been raped by a family member whose father wasn't in the picture whose mother physically abused her when she found out that she was pregnant the court authorized the bypass in that case and the district attorney took an appeal of that that's not providing assistance to the court that's frustrating the courts determination and it has nothing to do with the only consideration that's relevant in the parental involvement context which are in the judicial bypass write a statute that says for example a bypass court should satisfy itself that the minor state interests are her own interests that she's proceeding out of a free will and i actually think that that's probably embedded in the bypass court's determination in the first place and then i would also just add on top of that your honor that informed consent and what goes on outside the bypass process in terms of what happens at the clinic is certainly a barrier to a minor being caught in a in a if what your honor is describing states have a practice of appointing a guardian ad litem for the minor that is worlds apart obviously from what we're talking about here in terms of a guardian ad litem for the fetus but i think the answer to the creditors underlying your honest question i'm not alabama wants to write specific requirements for a bypass court the judge of the bypassed court to satisfy himself or herself that the team is sufficiently mature that she's acting on her own independent will that she's not caught in between the forces that you're describing that would be the prerogative i think of the state of alabama but that would probably be as far as they could go and certainly can't be turning it into an adversarial proceeding appointing lawyers for the fetus appointing lawyers bringing the advocate for the state into the proceeding i think twenty so it's not as though the abortion clinic is is hooking the minor up with a lawyer that it knows and sending her to court the minor proceeds on her own to court the minor  state and in every statute ever to have come before the supreme court or any other court is nothing but a rubber stamp we see alabama decision saying that this team testified and but the court found that she wasn't mature for the following reasons and provided detailed reasons as to why she wasn't mature it's not as though the court felt that its hands were tied in that had to just simply grant the pop bypass petition because the minor had sat on the stand and answered her attorney's questions we know from the decisions from alabama courts they have not hesitated to deny the petition of a minor because they take the responsibilities seriously this process in trusts judges state court judges with the responsibility to take the role seriously and we know from the decisions that have been reported but they haven't hesitated to deny it so it's not at all reading of miller which they got around to it made it and under that kind of understanding of miller there's obviously no real problem with having a district attorney in the relays the exact same role given that they function as an inquisit adjunct at the court as interpreted by the alabama and that's what the alabama courts have said their role is and that's what the statute says if that's the line putting aside just issued military issued the guardian right now sits in a very different position right the guardian ad litum for the fetus yes is talking about i think if that person is not acting i think the guardian ad litem for the fetus raises very different questions i think with respect that's what i'm asking you on the merits if that's if the dividing line is someone who exercises independent authority to decide whether or not yes a minor is mature or whether or not a terminations of a pregnancy is in her best interest the guardian who is acting on behalf of the fetus necessarily has to advocate on behalf of the fetus right in the great majority of cases i think that's certainly true and i think really when it comes down to the guardian ad litem for the fetus the real problem here is just  the having a role neutral and detached in any of its duties as defined by state law think would really have to be set is that alabama has carved out and role for the prosecutor where the prosecutor plays a role as the guardian of this process and ensures that the judge does not make inaccurate decisions and that the judge really considers the issues by granting the judge an alternative perspective which does not automatically support the minors position so perhaps that is a novelty and the role of a prosecutor but that is what the statute contemplates and i that they retreat to a third party standing here when really with respect to third party standing they make no attempt really to address any of the arguments in our brief and they only discuss it in a vote that's instructive with respect to their position on this entire question and i think that's because they really all timidly are conceding here that with respect to standing but they did not bring the suit for a declaration against the right provision of the statute and anything that else that they could recess for ten minutes