good morning ladies and gentlemen marty st case for argument this morning is planned parenthood against the marion county prosecutor a few words before we get going what you're doing this remotely and there are always potential problems with the technology if that happens i will ask you to pause or i may ask some attorneys to pause so that judges can get a question in and we will specified complications arising from an abortion the district court st enjoin the statute because it was not clear that that twenty list of twenty five complications was exhausted when the legislature fixed that problem the district you maybe i come to this from a strange perspective having just finished taking careful look at federal procedure but that there's a very lengthy you know one hundred page chapter practically in the book about what arising from means in section  cause we think it's we think it's but for cause all right so so let me ask you i mean but for the fact that a man named kenneth would met somebody named lucille pad more in th grade i wouldn't be sitting here it's  that that meeting was clearly the but for cause of my being here and yet we would think that there were a lot of intervening abends the mattered more work isn't much for cause susceptible to  quite attenuated connections well i don't think there's any doubt about what it means i think what you're pointing out is that maybe people would differ about how seriously to take the significance of it but for causal events but that has nothing to do with were the comments of chief justice roberts in the massachusetts against u p a lawsuit he was talking about standing obviously somewhat different thing but he was talking about the station and saying yes you know if you have certain things then eventually baby global warming will get worse but there's a really long chain there sure but it but again i think that's a matter of what's proximate and what is significant and what must be dealt with and addressed by people who are in a position to to address them and that's really only about i think the substantive authority of the legislature it's not about vagueness it's not about what we can expect medical providers to understand their obligations to be under the statute so you think you think then that it's say you know a twenty three woman has an abortion and when she's forty five you know after her father has just died she's experiencing anxiety of medical providers supposed to take her history and say well actually her her inside seems to be a little worse than it would have been because she had the abortion when she was twenty three so i better report this is that the way that's exactly right that's exactly what the statute requires that as long as it's a reasonable medical judgment and we think that that's sort of you know we inherent in the way that this would apply what is a reasonable medical judgment but i just about reasonable medical judgment too and then i'll let you continue i want to know whether you think under this statute this is a subjective matter for the doctor or an object of matter because it seems to me that makes quite a big difference if it's a subjective matter then a particular doctor might be more persuaded by the medical literature that says there is no link for example between an abortion and a later early you know pre term pregnancy and another doctor might be quite persuaded by that by those studies  i don't take any position on which studies are right but it seems to me if it's a subjective standard the doctor who thinks that the science is just no good behind some of these things would have no reporting obligation whereas  if it's an object of standard then the state would nd guess the physician's judgment right and we've taken the position that it's object of that this is about now and it's not specifically written in the statute but when we think about how we would invision a prosecution going forward in some extreme case we think the state would have to be at the burden of proving beyond a reasonable doubt that an objectively reasonable medical provider would have discerned the causal connection if there are competing studies that may be a very hard burden to me but we think it nonetheless is an object of stance and i think you know before we rush to the conclusion that that's absolutely what the statute provides i think we need to also remember what this court has said about uncertainties of this record which is these really ought to be matters for state courts to fill in the gaps if there is uncertainty about how to who understand the application of the statute as long as there is a core meaning of the statute and i think there are you know there are very clearly is that those marginal record meaning if we don't know how far but for causation extends and if it's not even clear that a physician making a decision in good faith from a subjective point of view isn't protected because you know obviously an objective standard is you're going to say what would the reasonable physician somehow think or other provider i guess it's not just physicians who have this reporting for harman well even planned parenthood acknowledges on pages nine and ten of it are complications that it acknowledges arise from abortion they think they're quite rare but they acknowledge that many of those in the list do arise from now i think the uncertainty that you're talking about really is not uncertainty about the meaning of the statute it's about it's guess i don't think that there's a lack of clarity about the meaning of that it just but for we deal with but for causation all the time in the law we have a pretty good ceramic need with a proximate cause rule in tort it's not just but for causation not necessarily sometimes there are strict liability so my point is that that's not a famous issue that is there may be uncertainty about i think that might also be a strict liability statute now what i'm saying what i'm saying is that we don't always go to it might matter more if we were talking about some kind of underlying protected conduct which is oftentimes why we see vagueness paired with over brett's but here even if somebody is uncertain if a physician or medical providers uncertain in a given case they can always report even if there was no obligation that doesn't transgress any underlying constitutional right if you know it may affect the quality of the data we don't know how that's going to turn out but there is a safe harbor here which is if you have any doubt at all just report it and i think we also shouldn't overlook the likelihood you know in practice that what's going to happen if this injunction is lifted is that the department of health is going to promulgated regulations as it has the authority to do to give guidance exactly exactly how to comply with this kind of let's get another question yes i mean certainly regular actions make that point so that this statute i take it is in a sense extraterritorial an application because indiana as i read the statute doesn't care where the earlier right that's my understanding as well yes well i don't i don't take that to be extraterritorial i mean of course what we're talking about is is the obligation of people in indiana for medical providers in indiana so it's you know it certainly doesn't care where the abortion occurred but if you care is where the medical provider is and under mr fisher why doesn't the uncertainty and even disagreement in the medical community over whether particular complications that are listed in the twenty five could even arise from an abortion agree our potential complications but some of them are are pretty tension well i will concede only there's disagreement over some of them that's certainly the case and i don't think this is the for there is disagreement why wouldn't that just lend itself to arbitrary enforcement of this provision we because the the language of the of the statute is clear is not about i think i think at that point we're not really talking about arbitrary foresman we're talking about the significance of result of the reporting and the legislature in its assessment has decided we don't know enough and we want to know more about these particular complications and just later decided or did the legislature decide that it wanted to discourage abortions which of course you argue would be it's provocative if that's what it wanted to do yeah but i think it's pretty clear this is this is and i don't think planned parenthood has said that that has anything to do with this case this is about gathering information so i think it was time to did make that argument but  is safeguarding in advice and women have information that would affect their health and this is about trying to gather more information about abortion but the point is even if there is disagreement about the significance of the connection between a complication and the abortion the legislature is still entitled to decide it wants to gather more information about that you know and then you know if it takes further action that can be a different question about the whether there is so sufficient connection although we think they're entitled substantial deference but it's certainly not a v issue about whether something has to be reportable just because there just agreement about its significance well the vagueness comes from figuring out the connection you know somebody goes into a coma i mean people go into comas sadly enough you know every day and then do you know women do and sometimes children do and linking that coma to a remote abortion i think if this if the legislature had said if any of these things happens within six months of the procedure or within a year of the procedure it might be on stronger ground saying that there's some rational basis for thinking that there's a link but when well it could be twenty five years later it's troublesome well that's but i think that's just a disagreement between the between the assessment of whether there can be a connection there is a scientific literature that suggests that there can be and in the hypothetical you stated that you know if the doctor has concluded under use of medical knowledge and judgment that there is a connection then that's reportable but that's doesn't mean you know whether you read without or not that is having to do with with the lack of specificity of the statute it's reportable now what we do with that information the quality of the data we get that's a different question and indeed gathering this information will better permit the scientists the epidemiologists and others to debate about whether there's a connection how significant it might be and what to do with why i don't buy that it seems to me that if you are risking the loss of your medical license what you should do is you should take this list one hundred and twenty five and whether it's man woman or child you should just send in the information certainly for all women who might or might not have had abortions maybe they didn't even tell you you just send it in and it's going to make abortions look as though they are much riskier than they are look we don't st of all think that you would be held liable if you did know about the abortion especially if in the exercise of of the ordinary standard of care you had no reason to know but let's just assume that that's right let's assume that the way to comply with this that any uncertainty whatsoever is to over report that's ok that doesn't have anything abortion complication means the existence of any of the following twenty five things well here is what you may worry about junk data i don't think sitting here we can predict that that is necessarily going to be the result if it is the result that's something that the those who study the data can write about in the legislature if it wants better data you have write a better statute that's has nothing to do though with vagueness it has to do with the quality of the data that comes out of the reporting that's required i still getting well go ahead but my concern is still the ability of the medical providers in indiana to understand from this statute the scope of their reporting requirement given the very significant penalties i really stress loss of the license i realize it's also a misdemeanor which is a criminal offense after all you know there's a  big stick at the other end of this so they are especially when they realize that their own personal judgment can be overridden if somebody thinks in the projective person would have thought differently if it's of well  to know when when you should do something i don't think it's hard to know i think it's maybe a breadth concern but there's no constitutional right against an overbroad statute in this context it's only has to do with the quality of the data the indiana supreme court's there on the back end to to police the substance of standard that gets put forth in a in a criminal trial the department of health is there to promulgated regulations to tell his issues and other medical fighters exactly how to comply and the medical licensing board is composed of physicians who are also going to be concerned about this abortions so one of the enumerated conditions is cardiac arrest you have a cardiac surgeon who treats somebody who had an abortion ten years ago for cardiac arrest this doctor cardiac surgeon she doesn't have any exposure to or training in abortion so what's the standard that applies to her well i think st of all we have to assume she knows about the abortion if she doesn't know about the abortion and in the exercise of the standard of care you know isn't required to know about the abortion and we don't worry about it if she does know about the abortion it seems to me she you know consults the medical literature if there is if in her assessment a reasonable physician would report that as a rising from the abortion and she reports it but that's i think you know how she should think through it and so it has to you know we're going back to the same medical judgment that we expect physicians to exercise all the time because there's nothing new about any so it's kind of a proper medical standard of care as opposed to something within that subspecialty you're expelled yeah what these doctors are required to know well no i don't think we're trying to affect the standard of care for any physician in any given context so i think it can be rel relevant to the context in which the privacy i think can be relevant all of this of course you know can be can be i think resolved through the regulatory process and if necessary through declaratory judgment actions there's no need to bring down the heavy hand of vagueness doctrine on a statute that really is using but for causation as it's true how would you like to play or a to a judgment action on a question of omission well i don't see why there would be a problem with that i mean if the if you know i advance of that probably not regular that case was different because there was a penalty if you didn't if you did something affirmative so you could go in to get it to clear to the judgment for should i affirm it depleted this this is a penalty if you don't do something and omission right but i think you would just ask for the declaration that you are not required to report i don't see why the act or omission distinction is relevant to the availability of that means to result but i would like to result reserve the remainder of my time may thank you certainly counsel mr ro jump in right away with you and say that the critical word you just uttered was many as opposed to all and as i look at this list i might not pick out very many things that have to do with abortion but number seven failure to terminate the pregnancy number eight incomplete abortion retain tissue maybe that's it but you know there are a few things that are seems to me unequivocally connected to abortion and if there is at least some core of this statute that can stand the status argued that it follows a severability doctrine and we should just save the parts that are valid and perhaps strike down the others and the district court didn't see it that way the district court saw the whole thing might perhaps view as arising from judge was initial question or perhaps your observation that if you open a civil procedure casebook at least one hundred dollars pages are devoted to the interpretation of the phrase arising from it's the key to federal jurisdiction and it's turns out to be a very common phrase in the law as is the concept of course age i was struck by the fact that neither the district court's opinion nor your brief cites a single other decision in the history of the united states holding that phrase to be unconstitutional  yes and the reason for that yes i did then the answer is no you're not aware of any other such case correct cash now just just a few years ago the supreme court had a case arising from a criminal statute in hansing the penalty if an illegally sold drug caused death the justices showed that that simple word was capable of at least five and maybe more interpretation they chose the one they thought bass should they have held that phrase unconstitutional instead because it's in a criminal statute joe joe i'm  is doing something that within a year and a dead causes someone to die you can't adjudicate any murder case without a question of causation is all murder unconstitutional because causation is a debatable issue as we've been through it could mean but for causation it could mean proximate cause there could be mixed motives if you think of the case in which two people fire bullets simultaneously and they both it and the person dies who is cause the murder right that's what you encounter in st year criminal law you can't do a murder prosecution without unraveling what may be a at least in part the argument that some of these things at least suffer from the post hoc ergo propter hoc fallacy that you know somebody has an abortion and they are department of health saying in indiana last year there were this menu she wants to let me let me give you another example of notice statutes one of the best known is the occupational safety and health which requires every employer to notify the agency about any workplace accident or laws arising from and then there's a list of things that happen in the workplace is that unconstitutional i don't think so judge and i don't see how that's any different from this one this statute has to do with medical procedures the occupational safety and health act has to do with workplace proceed but the idea in both cases is to find to require reporting of bad outcomes related to inputs either in the medical procedure or in the workplace so that those two may be connected later it's the same governmental goal and the same basic statutory structure why should they be treated differently just the state of indiana does not requir you can not know at the outset what the answer will be for hundreds thousands millions of different situations in a workplace that can lead to an injury you can't give the answer to every one in a causal phrase you have to work it out that's why i'm asking why the indiana statute is different from the workplace injury i thought that your answer was a different one which is that arising from the induction or performance of an abortion as the state is presenting that phrase right now could mean any time in the person's life and to my knowledge the osha statute doesn't allow the employer to decide well i guess maybe i'll just report this thing fifteen years later the osha statute d expects prompt reporting of these workplace incidents and so anyway i thought that but let me ask you somewhat different questions comes at this from a different point of view your grief made me think that actually the burden of this statute is going to fall more heavily on primary care physicians and specialists of all other kinds in the state of indiana not so much on planned parenthood because both the medication abortions that we're talking about here and the surgical abortions that we're talking about here are performed very early and in the pregnancy and the person goes home and it's not likely planned parenthood will be encountering any of these complications later so are you essentially asserting someone else's rights or is this something that really hits planned parenthood to kno and nothing further thank you very much thank you mr roach and even further mr fisher thank you judge st i want to go to judge saini of your question to mr rose about why our sort of safe harbor approach of over reporting would be would would would be problematic in i think the only response that i heard was that it might increase the administrative burden of course and i think that to me not on the physicians and other medical providers but that of course has nothing to do with vagueness doctrine that that's a thing you know a wholly different issue and indeed there is no undue burden challenge in this case so i don't think that that is a risk of response as to why the kind of safe harbor that we're talking about or i just want to touch very briefly on the on the backup arguments that judge would raised st as to the psychological on in the case so i don't think there's a very strong ground for that as for adverse events i think they're all we're doing is invoking the same kind of reporting structure that it's used when we're talking about f d a testing the same reporting that you know has everybody has gone through even to get the