good afternoon ladies and gentlemen we are here this afternoon to hear arguments on woman's health alliance against curtis hill and others are ready for you mr fisher if you're ready for us waited nine months after it filed the suit in over a year after its license application was initially denied before filing this motion there's also no basis for granting the injunction it contradicted let me ask you a question i mean there are a lot of questions i have  problem here in your view with the form of the injunction and here's what i mean by that question if the injunction had in essence said that the state was compelled to grant a provisional license pending the outcome of the state of the litigation such that it would be very clear the state would have all the powers of inspection all the powers of supervision record maintenance it all the rest of the things that go along  would your position be any different i think we would still object to i think we would still be appealing to that candidly it would be better than the situation we're in now of course i don't think that that really is within the province of federal courts to reach out and compel liason state agenc get licenses now that's why i said provisional because i mean if the federal court can say don't do anything at all i don't know why something less i mean when it in a sense would be a functional equivalent since quite a bit of information has been turned over to the state by this time through these two licensing proceeding well i think the of course the department up once and once more in their day it's within their statutory authority and to make sure do you think they  are then moving the goal posts are they really engaged in a bona fide search for information no i don't they're not moving the goal posts they are trying to get the information regarding the license applications investigations and foresman actions from goldman's health and all its affiliates and i think the balance before it was over this mean of affiliates but i think that's been resolved i mean i think i don't know let me ask you this do you think if hypothetically i'm not saying this the relationship here but hypothetically if there were a franchise or franchisee relationship or a trademark holder trademark licensee relationship does that in your view fall within indiana's definition of affiliate i think what we don't think we would look technically at the fit at the franchise or trademark what we would look at is to control the ownership and control as you know in other words you wouldn't call franchise or franchise control that's  contractual well i think so i think i was saving the possibility that any given circumstance there might be defacto control here or what would you mean by defacto control that notwithstanding that it's and it seems like an ordinary franchise relationship where the there you know isn't a day to day operational impact from the parent or the franchise or maybe there's something going on in the background where there is de facto control by the franchise i'm just leaving that option open to its critics and i'm just trying to understand what you mean by that option because i certainly understand corporate control corporate relationships and your stand in philly it's we may have some of that here we may not but it seems that people who in good faith want to comply with the state's regime need to know what they have to tell you about what kind of de facto control the youth pick up the phone and it's susie smith then you have to listen to what suzy saying that if it's joe s'shmoe you don't have to  the department help asking reasonable questions about who these new players are coming into the state and how they are likely to operate i don't think there's a concession out there i mean i know that's your position  that so the department of health is ask a lot of questions am i right that the ball stopped with you they gave a bunch of information in response to the  nd set of inquiries but drew the line someplace but the department never came back to them to tell them it wanted more no i think the department   expansive but they give some additional information and the department never responded to that is that correct it escapes me at the moment where there was a specific response the effective response has been we want the information that we've asked for and i think you know that we're not talking here about some you know battles over privilege or anything like that we're talking about a wholesale rejection of the categories of information the main three categories of information the department wants with respect to fillets what it making a difference to the department if because of the corporate structure of these other loosely defined affiliates whole women's health and didn't have the authority to command them to produce documents well i think if that if that were the case and they didn't have the authority to produce documents that might have an impact on the on what the department understood it was dealing with now you know then the department have to look at whether and i don't know the answer to this weather would have some source of peano thore ready to be able to command that but i don't think that's ever been in dispute i don't think anybody's ever disputed the idea that a hagstrom miller in particular could command each of these affiliates to produce these documents ok so and i think that where the district court then i think wimps is kind of off the tracks in terms of looking at the preliminary injunction was not understanding that there are these important not only you know it abstractly important ex ante credentialing you know i think advantages of doing the licensing but that that carries forward also into the ability of counsel one of the credential  bitches is obviously you can figure out who's playing what role i've i will say i was troubled by the assertion in your supplemental memorandum that it's a problem for these clinics that someone who you don't name is connected with overage clocker right that's sounds like an argument about guilt by association and if we're going in that direction why syncing is highly problematic right it's it's the equivalent of asserting so and so was a partner at a law firm where some other person committed a crime and therefore that person can no longer practice law we don't follow guilt by association so who is this person what is that connection why is it relevant to license your your document after throwing this red herring out piece entirely silent why is that happening at the clinic if this there would be a need to investigate if this person was going to be the director of home and self was he involved you know to research you have any reason to believe that this person the district court gave the namely a morally right  it was either an employee or administrator and the district judge apparently didn't know which right do you have any reason to believe that william morley is not suited to operate or be associated with a medical clinic i don't know i think what the only reason well when i say you it's it's an institutional you whether the state of indiana understood it and i think that the point there was simply that that was one of many factors that went into asking for more information the need to conduct further investigation it wasn't me smoke and if blowing smoke is the goal this whole process looks pretextual and if it's pretextual you've got a serious problem under sunder study and i think the explanation there is simply that that was one of many factors that prompted the department to ask for more information but there was not itself a reason to to deny a license or anything else it was just one of many factors where the department said you know what we need to do we need to conduct further investigation you know that's troublesome  the reasons the judge easterbrook states and also when it's one of the reasons that perhaps several of us up on this bench have not been big fans of multifactor tests you don't know what that means you say it's a factor what is it one percent factor is it the dispositive decision i don't really know what it means and if they can come forward with you know this actually gets back into some  very clear in this record seems like it was just considered to be incomplete and the state of indiana itself encouraged hope women's health alliance to try again to apply a nd time which they did sure yeah and i  motion for summary judgment and the other party opposes it and summary judgment is granted that doesn't automatically mean that you impose rule eleven sanctions against the person who was opposing summary judgment in other words the point being that you can fail to win and you can fail to prevail in what you're trying to do and at the same time you may not have done something morally terrible you may not of shown bad judgment as a lawyer you just thought you might win and you didn't and so i'm thinking of this those two parts of the indiana laws capturing those two ideas one of them is a very serious you know bad reputation the other you know was it was either inaccurate or incomplete information but this operate different well i understand there are additional opportunities of course to them respond to the request for information but i would say when you ask for everything and suppose you ask for all their traffic tickets and then you said actually i'm not going to take your word for it that never had a traffic ticket i want you to get records from the state department of motor vehicles in every state in the united states in which you've ever driven a car certifying that they don't show any moving violations for you i mean that would be a pretty burdensome reminds well i don't i'm trying to figure out where we want to go with this discussion i think the point is that if there is if those requests would be beyond the authority of the department and not relevant to the that's a matter for how you know a i'm worried about this too but you need to pull apart but suppose the indiana statute says the state can ask for any information it wants without limit that's just a matter of state law then we would look at and i think that a federal claim coming out of that but i did not understand holding cells to be saying that the request for information themselves are violations of of of their or their patients due process rights i understand them to be saying that under the circumstances holding them to the state standards is an undue burden given the circumstances inside then i think i mean you had some discussion of this sort in your briefs both the st one and then the supplemental br obviously taken d'anna law as it is there is a provision of indiana law that says and we can ask for any other information we want more or less along the lines of judges to purchase said and if that is so broad as deep as to create a system in indiana that amounts to an undue burden on a woman's right to seek a st seventy day abortion then we've got problems then we get into a whole women's health stat we have to balance according to the supreme court there see what's the benefit that in turn draws us into this distinction deanna's drawn between miscarriages and abortions and there are there are a lot of things down that path but the they say that applying with a license the law at all under the circumstances of you know well applying only one can understand them to be saying well actually that they are saying that applying a licensing will that allows the state to ask for anything in the universe license without asking whether he's ever been in a law firm with anyone who has ever done anything wrong would be fired well if their complaint is that the on the face of the statute the can't be a license there can't be a license we know that from plenty of supreme court cases but it doesn't mean that every hoop that you might have to jump through to get a license is automatically fine and i think they're focusing on these extraordinarily argument one can characterize their argument is objecting to the very fact license district judge did that and that of course runs into the teeth of supreme court cases which are so the other way you can characterize it is by saying if indiana licensing more requires the entire examination of the life history of the applicant and their ancestors and everybody to the th level of civil relationship then this particular kind of requirement is invalid it one can understand them of saying the latter you can understand why we're asking this question i can't and if that's what they're asking if that's their argument that i think it comes back to the requests themselves are not that broad at they're not at that level they are within i think about a reasonable this is even i think the district court acknowledged we're talking about licensing applications for licenses investigations in foresman actions by holmes health disclosure commands in the abortion clinic setting which we aren't the state is not requiring in the clinic medical clinics and setting i mean if we're talking about women if a physician's office what would otherwise be a physician's office undertakes five or more abortions than they'd have to be life threatening so it's just a de minimus exception that you know is there so that we don't catch somebody who's just not you know doing this here and there as opposed to  systematic effort and i think that that's certainly consistent with what circuits around the country said it's permissible because it's not making this sort of categorical distinction it's just you know an even handed to minimize exception so before you sit down and say two things mr fisher one i'm going to give everybody some extra time because i don't want to cut anyone off too though i think there's a maybe you didn't mean to phrase it this way but there's a fallacy i think in what you said clearly the state does have an interest in fetal life from the start so you can have an informed consent requirement you can have these requirements that are and in this litigation nobody's challenging you know at the same time in both casey and then reiterated in heller step the supreme court has said that whatever this state is doing during the pre fire ability period cannot have the effect of placing a substantial obstacle in the path of a woman's choice that's not a permissible means of serving the state's legitimate and so i don't i want to make sure that it's clear that just because the state has had interest in fetal life throughout the process doesn't mean that any restrictions at the state comes up with to serve that interests all right at that early stage it's got to be one that does not substantially burden the woman's choice agreed i think th the point that i'm trying to make it is only that when we think about how different standards apply in different contexts sometimes we are focused only on the physical health of the woman sometimes we're concerned about fetal life and maternal emotional or mental health and we have to just make sure we've accounted for those ok fine all right i will let you sit down and as i said i'll give you some extra time yes now we will hear from me is saying you you can tell what kind of questions were about that matter are you defending the district court's decision that a license simply cannot be required of your cards clinic right what the district no and then you can explain why your honor yes we are defending the district court's decision that the added preliminary matter or as a permanent matter because certainly if it's a permanent matter there are a number of supreme court decision matter what the issue before the district court was for culinary relief you're certainly challenging the license requirement facially in the larger loss to fat is not the issue that was before the district court here so for present purposes can we take it that you concede that the state of indiana if it wants to do so can ask even clinics providing so called medical abortions pill abortions can be required to be licensed so that the state can you know check them for cleanliness and proper medical procedures and make sure that licensed physicians are responsible for what's going on all those things at the state has been said that it can do when in many cases yes sure  injunction would not prevent the state from doing any of those that means unction prevents the state from doing all of those things so it's quite explicit that the licensing requirement itself cannot be applied to your part to our client but it could be applied to right i ask this in part because of the what seems to me just striking conflict between the district court's opinion in the supreme court and the disappearance failure even to discuss the current supreme court cases but the other way of understanding your argument is to say yes of course the state can require a license but it can't require so much information that that you fact of lee prevents somebody from getting a license without a cost so great that we don't operate the clinic right that would be a substantial burden in a way that a normal license would not i understand you've got this problem the district court said licenses just can't be required because i think different means of enforcement are better but are you contending that if a license can be required what the state has required is itself a problem yes you know we are contending what the state has required here is a problem so those additional questions that i referred to with mr fisher that came in the wake of your nd application where they really did seem to want the kitchen sink are that you are you are attacking that yes that's good so that's why i asked mr fischer in a sense what i understood you to be arguing was that between the st licensing proceeding that got resolved it got dropped sort of after the appeals panel ruled and the  nd that your client has already furnished a very significant amount of information to the state licensing authorities and that at least pending the outcome of the merits phase of this litigation that's enough to satisfy whatever licensing burden there is is why i asked him whether some other injunction that kind of made it clear that i mean you know suppose i'm sure this is going to happen but suppose six months from now  turns out that no one's clean the floors you know for four weeks in your clinic in the state wants to come in and say that's not acceptable you know we have a completely independent reason for saying that this is a problem it's hard for me to see why the state shouldn't have that all the sea continues to have that power and that is what the district court found under what blogs oh i i didn't see others in the x post clearly states go out of leverage because of position license and i know all of that but the state is saying we want to be like all other states who can actually ask for a license we can go in the us again make sure you've got the right equipment the right manuals practices isn't there some way to say that you've done enough now to let the state do all that you can see that they have those powers and you are in that sense a de facto licensee while this case is being resolved  telling the state they have all of those powers they are free to inspect the district court was unpersuaded by their argument that they lack the ability to inspect the definition of an abortion clinic is a health care provider providing medical care health care provider is because i'm not clear on your responses on whether the state can license it i understand your argument now that they have powers apart from the licensing appreciate them but from the standpoint of supreme court jurisprudence do you question that they could have a licensing scheme i'm not talking about whether in this case it's been solely excessively administered that you have been und are you standing here today and suggesting they do not have the state don't have the power to license an abortion clinic no your honor we do not contend that a licensing scheme is per se and und understanding of the injunction was that it would prevent the department from requiring coleman top alliance in southbank clinic just the south bend clinic to obtain licensure before providing medication abortions well that was the handling the licensing process you know this you know f b i full field clearance you know approach that they were taking to all of the people involved in the clinic i do understand that the case has been limited in many ways at this stage it's been limited to south bend it's been limited to the medical abortion procedure not surgical abortions it so so there are significant limitations which do give us a much narrower set of concerns that we would have otherwise we're not looking at your original complaint but within that there there may may or may not be a way of saying we recognize the state's legitimate interest in licensing but we also recognize it when it's being used this way there's i keep groping for the term some de facto license some something that preserves as much of the state's power as as possible which is the direction the supreme court seems to want to go with you know we would certainly accept an injunction that this court that was narrower in scope the relief that we seek is the ability to provide care only correct your honor so that northern indiana residents don't have to take the lengthy trips and experience all the associated hardships that currently exist that is how we had understood the injunction and  we would be perfectly fine with an injunction that was narrow the scope pending the outcome of of the lawsuit that like to address the benefits of the licensing law but the state is argue that the licensing law advances indianness interests in patient health and in potential life and i'd like to talk about both of those interests turning to patient health the district court properly concluded that medication abortion is safe based on extensive allow now back to saying the state just can't require them licensing at all i thought we had moved past that as a player and told you you remember what happened in the supreme court the th circuit said that about the decision you haven't discussed that decision the whole point of that case was to say that a federal district judge can't decide one case at a time whether licensing is better than some other means  but of course of licensing is being used as a veto power rather than a license power then there's a problem that's where we're trying to steer this and i think what you know again going back to heller said which is the supreme court's most recent pronouncement on all of these things the court is looking at and the court there it clearly says you can't just talk about benefits you have to talk about burdens as well to use the dreaded balancing word doing in a number of places in that opinion mostly in part three and so i think particular situation we contend that the burdens that are imposed by applying its own toddling to south bend clinic outweigh any benefits that would accrue let me ask this what if what if there were no clinic in south bend i mean to what extent is the district court looking at the burden on the right that women have in north east indiana or mid to north east india if there were no clinic at all if there were no clinic in south bend it would also mean that that individuals that lived for example in fort wayne and other parts of north central and northern indiana would have to travel further distance is now  constitutional de facto to say that abortion is available in chicago and i want this court found that it should so sending someone to chicago does it sure that problem they also said the same thing in israel when it comes to the nd amendment  just because there are gun ranges in cook county didn't mean that chicago is a city wouldn't have shown are so so just so i guess what i'm asking in part is just what's license in law is a burden not to the group for whom it is irrelevant this court has clarified that standard previously here applying the licensing lot to hold the top line says outspend clinic is a burden for individuals living in northern indiana w have to travel further distances and experience so does he do you think law the burden or the application by the state creating an onerous situation that you can't comply with the prevailing view it is just in this case that you're burdened because you can't comply isn't that what you're saying yes your honor we are i mean that is the whole isn't that everything you just can't comply and that is that your position being because it's too owners yes we are contending that we can't comply we can't get a license because of the way in which the department is applying the law yeah and that as a result we're being prevented from provided needed abortion think i understand the bottom line so so what is it that you want it was to focus on the abuse by the state if that be the right term in the way it's applying the license  proceedings so you would originally responded with just the austin charlottesville affiliates then the new legislation was passed redefined affiliate help we did attempt to provide the inspection reports in the st it's so they asked for those reports before indiana live or defined affiliating we said fine have them but what they told was surprised we can't maintain the confidentiality of those documents if you g those to us we're going to have to turn them over pursuant to an indiana state public records act request and you're not going to be able to to redact anything or to protect any information and even if you went to the administrative law judge you got a protective order we wouldn't be able to comply with that either and that's it did these reports have individual patient names in that they did have information about about the clinics and so often when these reports are made public there are redactions that take place but the department's position at that point initially was well you can't do that they changed their position later once we got before the administrative law judge but at that point we were we were going to hearing and and discovering how it had closed so it's not as if we've been trying to hide anything what happens is we provide information they come back we want something more this latest request for example doesn't just ask for inspections what it actually says is give us every single document you had that concerns mention or relates to any investigation inspection or survey for any of the homans help l t entities for the last five years in any of the five states in which they operate such a request would include documents that contain information about strategic business and financial decisions about where when and how to open a clinic and yet they would shed no light on holden's help alliances ability to safely provide abortion care and that supposed to be the purpose of the licensing law even according to the department today so we do conten on its face is it's overly broad and also in the context of all of the thousands of documents we've already provided which also doesn't include inspection reports from holding top alliance's austin and charlottesville clinics do you have  relationship among these other among the women's health alliance and these other clinics i must confess i've had a little trouble drawing the organizational chart but just whole women's health alliance have the kind of relationship perhaps through miller to order these other ills around the country to furnish confidential business stayed home and  miller however as i just mentioned she did attempt to to provide the documents so we went to her who said will you turn over the inspection reports from your analysts to entities so the lines can get a license and she said yes and we attempted to go to the department said ok just don't turn these over to the public because what ends up happening is those are used then to defame c they're pulled out of contacts they're sometimes produce in partial horror and in fact the department has prevented presented to this court only partial inspection reports they're making allegations based on an inspection report but not providing the plans of corrections and not providing the answers that the whole men's health alliance and it's he made to the inspection report and what it is when that what ends up happening there is that those allegations are pulled out of context and then they're used to say well you're not providing safe care you're jeopardizing patient health and that's just not the case there's there's many reasons why that's not the case but the fact is that in texas in the region those clinics are still operating those states have not revoked licenses those states have not taken action against those entities and that's evidence of the fact  at least based on the department's logic that they're safely providing abortion care ok was there anything i mean i'm going to let you if you have another minute you can have it otherwise i will turn it back to mister sharon just like to say with respect to the state's interest in furthering potential life the consent required rents that they contend are necessary what they're arguing is the licensing lot advances the interests and potential life because it is aids and for some of the informed consent requirements those requirements continue in place we have knowledge that we have to comply with than both defendant medical state licensing board and defendant county prosecutor have the ability to enforce those requirements on the individuals whom they impose duties which is the physicians and with respect to that you're just saying very little marginal benefit for whatever i know this is not just reverse fair point but in any event burdens  benefits aside i'm going to understand that's what you're arguing yes shriner and also that the department hasn't provided any evidence as to how licensing actually increases the likelihood that the informed consent requirements are complied with given that a licensing law doesn't impose any of those obligations itself all right so maybe that's actually a red herring well if you'd like to sum up that would be fine yes  contends that the licensing law the only issue before the district court injunction that we seek is that the licensing law should not be applied to the clinic in south bend we should be allowed to provide abortion medication abortions non self lives why don't you say in its entire y to the clinic in south bend yes shiner in its entirety the clinic in south bend that we can continue to provide medication abortions there pending the outcome of the lawsuit that is a limited relief we seek all right thank you very much  that it would cost a quote dozens of hours to be able to comply that was only one of the parts they said dozens of hours a different part they thought it would be hundreds of thousands of pages five years worth of documents for anybody compliance with informed consent rules or blackwell clients with forty eight hour you know whatever they are eighteen hour waiting periods we did have a very big problem in south bend with the prior clinic run by d who was not reporting on that as of yet to differ as well so it just illustrates that yes there is this possibility and you want to know who you're dealing with but i think the more important point here is that if if the court is concerned and again i don't concede that it ought to be left the court is concerned about the breadth of the requests that that's where that there's a problem then i don't think certainly enjoying the entire licensing plan scheme as to hold one's health is the answer the only answer there can be some fairly targeted relief at the at the information quest and indeed going back to the judge chief judge which are your suggestion about can you order the department to just issue the license i think that's too much if the if the court were to say well you have to consider the application but you can only ask for the following documents following categories whatever it is  that the court comes to a conclusion is constitutionally permitted and then it goes back to you to the agency then the agency can continue to do its to do its job as a licensee entity because i think it's it has to consider the documents the information received along with other statutory factors and that the department is unwilling to go back to my speeding ticket example i'm willing to take somebody who's affidavit that they've never been shut down for health for safety reasons it insists on going back to not a public authorities i suppose it's their five well i think so but i guess on getting there your honor is if we think that's right if the court comes to a different conclusion the relief cannot possibly be therefore no more licensing it has to be targeted at that particular concern it can't be so broad as to require a license as to say no licensing scheme at all the really fast mover and we haven't talked at all and i guess maybe we need to about about the  state's position with respect to the need for information for abortion clinics and suppose i think it's a little bit what judge farm was asking about earlier suppose for other types of facilities where the state kind of pulling facts out of the air in a lot of this case such as the women's mental health issue where i see pretty much nothing in the record that was ready about that but maybe that's so far afield from the licensing we don't need to worry about it i think i think it it is in a sense your arch because those are other substantive risk sections of the licensing scheme is in place to help enforce in the validity of those who it is i think in play in the rest of the lawsuit but is not not not s right ok thanks all right thank you very much thanks to both counsel i'll take the