how much time you have left and when it's time to stop our first case this morning is number fourteen five zero nine twenty eight whole women's health et may please the court texas an act of house bill two for the purpose of raising the standard of care for abortion patients and a deterrent for vets substandard abortion practitioners from offering their services in texas the district court in joint the state officials from enforcing house bill to his requirement that abortions be performed in ambulatory surgical centers as well as its requirement that doctors performing abortions hold hospital admitting privileges the district court's judgment is wrong to the record i had trouble discerning what it is about the a s c that is better than the existing rules prior to house bill two for abortion facilities and words what does improve i understand the admitting privileges to the doctor himself or herself but as far as the facility what is the improvement the several improvements in the standard of care from the a s c bills the first is the enhanced and countability and accountability mechanisms that are provided by the professional and i mean look this is a good player and i'm sorry i realize there's a lot of rules so let me be very specific the evidence that was in the record for primarily focused premier opponents on the issue of having to ensuring a sterile operating environment that's what all those rules are designed for there are other rules that are and why can't you have a sterile operating environment in in a three thousand square foot they made a big deal that has to be seven thousand square feet all this in the it was a very long already a standard for abortion facilities yes there wasn't an inch and chapter one thirty nine ok but those requirements did not ensure a sterile operating environment they also did not insure some of the other patient protections that are contained in the operating performance of the rules now you can't go through that every single day i see rule is specifically designed to be optimal for a particular medical practice or a particular building it's be used they're designed to create a standard and a uniform rule that can be easily administered by state officials and more importantly a uniform rule that can be easily administered by outside monitoring groups that participate in ensuring that the standards are complied with that need to be a sterile operating room if there's no one to tell us that that's important for this type of procedure because of the bacteria that the it's already there in that the procedure they say doesn't need to be sterile there are some medical personnel who take the view that a sterile operating environment is not necessary but there are some who are and when there are disagreements among medical experts just as there were in the partial birth abortion case the legislations and title to resolve that disagreement gonzales against carhart is instructive there was expert testimony from some medical experts the partial birth abortion would be necessary for a patient's health in some circumstances there were other experts who upon and in the trial that no health exception was necessary in the supreme court said in this type of situation where medical opinion among experts divergence it's the job of the legislature to resolve that and the court should not second guess that so long as the disagreement is reasonable for mr mitchell to do we defer to the legislature rather than to the finding of the district court the implied finding that that wasn't know this is the reason the sort of under like in that line of cases and it is the idea that you can kind of find an expert to say anything so are we rational basis review still require some degree of review ok and so are we saying that if you can find someone in the world to say we need to you know marble floors in an abortion clinic then that would be good enough to allow the texas legislature to pass and the mere existence of an opinion is not enough the opinion must be reasoned and it must be at least rational to believe that the opinion might be correct that's the standard on a rational basis but of course that's not the only standard that must be satisfied here all of the dispute about whether purpose we know the effect has been that at least in west texas we no longer have any abortion clinics where that was the intent where we were whether that will continue to pretty mean we know that's the a fact so we have women driving one hundred  fifty miles two hundred five hundred whatever the number is a long way and as i appreciate dr anderson's testimony from understanding what he's saying is that the prout problems stemming from an abortion ar you know maybe down the road and that might be literally down the road so the woman is driving down the road in west texas in the middle of nowhere and starts profusely bleeding isn't that a problem too to not sort of the antithesis of concern because accepting your evidence as true which isn't necessarily the right standard view but except thing that it seems like we're going to have women driving a long way and suddenly have a bleeding episode  truly the middle of nowhere i mean you and i both know west texas there you can go miles with or not even be in a gas station but there are also why and why how does this protect that woman this stand in el paso the reason we're posing as applied relief in the are several reasons but one is that there are abortion clinics available in santa teresa new mexico right across the border just five minutes across the border we're talking ten miles from the existing clinic both reproductive services and health talk there are alleged to close and the jackson against courier case that came out of mississippi has some language that might suggest the court should consider out of state providers but the jackson mccown may i understand the el paso is a little bit complicated as we have to pretend like it's five hundred fifty miles when it's really ten but tell me  and the corpus cristi the only thing that has changed since that holding is that the corpus christi clinic which is not an a s e clinic will not be in existence if the s c law goes into effect so rather than driving from account to corpus christi the patients now must drive from the calon to san antonio so that what the plan is must show is that the extra fifty or one hundred miles or so from corpus christi to san antonio making the trip from macau and is what tips the balance from not being an undue burden to being an  the several important holding some added to that control here one of which is that the undue burden standard is one that looks so way to the affect on abortion patients it's not a balancing test that asks is the law medically justified and is that justification enough to outweigh or counteract whatever burdens may be imposed on abortion patients and what about the barn opinion there maybe certain situations where the state's interest is so compelling that it couldn't  right to an abortion for example and i think jackson recognizes this if there's only one abortion doctor laughed in a state and that abortion practitioner is someone like kermit gosnell the state can go shut him down and make jackson against her or says at the end of the opinion even if it means there won't be any providers left in the state there may be some compelling interest to trump any assertion of the constitutional right but when it comes to undue burden the test that was established in casey added to says that the test is whether a substantial obstacle is imposed on abortion patients now whether the obstacle has a medical justification the alleged medical just pick a she goes only to whether the rational basis test is satisfied the second important holding from habitrail is my question really was directed to the rational place because i understand what added to says i mean i was no but if you're saying that ok maybe when you pass the bill from the outside you don't realize the effect but now that you look at the effect is it rational to say that effect of this bill is to advance the medical care of women if you have women driving long distances and maybe i misunderstand the evidence but a minor stand was these believing events can take place after you're literally on the road standard of care and is that having is that correct or am i misunderstanding the ad is it correct that under the h b two it could be that i want to go she gets her abortion she's driving this one hundred fifty miles two hundred three and or whatever the complications they don't happen your argument is that's under reported there's always bleeding advance all these emergency rooms that aren't reporting them and so on when do these bleeding and we don't burden have factual down calling that to cover a lot of things i don't mean to to use  forces how many of them occur after the patients arrive home versus how many of them occur in the car driving to or from the clinic there's always arrest the complications arise and there's always the rest of the complication could arise during transportation to or from the clinic but we don't have episodes in the record of that happening and we don't have evidence of how many times that has happened or how many times it will happen mr is rational basis is a subject of this appeal at this time my understanding is that it's not judge yankel specifically found that the law had a explained that in a briefs the plaintiffs were critical of our reliance on some extra record evidence but rational basis or he was not limited to the record the question is only whether rational basis can be imagined and no i was just going to say so so then well i think it's in play but whether it is or isn't let's look at your and your burden argument on a passage is it your contention that the jackson case does not limit the judges and now it says of el paso where there is a clinic ten miles away in other words that judge eckels should have considered the presence of the new mexico clinic in determining whether as applied relief in el paso is appropriate that is our position judge hands and there's language in the jackson opinion that can be read either broadly or narrowly there's certainly a some language that could be read to suggest that out of state clinics should never be considered period but the very end of the jackson opinion the court says that it's holding is limited to this particular circumstances of this case circumstances in which all of the in state abortion providers are being closed down on account of the law and circumstances in which we don't have a cross state metropolitan area like we have in all passes so our case is distinguishable in several ways from the jackson situation that you lose five hundred over five hundred miles given our precedent that is looking at miles i know some of the miki say we shouldn't be looking at the miles the eighth circuit doesn't look at the miles at all and that there is some language in and one of our and i think abbott that says mileage regulations solely on the ground that our president does go through these mileage it now says it would be inconsistent with our president to say oh we're not going to do that anymore i certainly would have meant we'd have a harder case if jackson were read broadly i wouldn't buy i can see that we would lose and even there the most on which the plan is to get relief would be an ass applied remedy limited to the clinic and i'll pass out for that which is a coal plant requirement for the a c s yes for the physical plant requirements because those are several plaintiffs say in their brief that el paso still has not reopened even though this law has been enjoined now for three months and if el paso has no intentions of reopening then there shouldn't be an article three case or controversy between the apostle clinic and this that you knew that they didn't have a license the thing turned in their license even before the trial in this case so you could have developed a record as to what were the intentions of the clinic in el paso and whether it depended and how do we ever solve this question of whether el paso could or might reopen period when we do any need to know from the plan of the planets need to bring to the court whatever factual information is relevant on that and right now all we have from the plaintiffs is a two and a half men not three minutes is fine if you answer that question are you still answering jane's question about how we would determine whether it's a new look the way to term it will be based on factual disclosures presented by the parties and that both lawyers on both distance or mileage alone is not sufficient that's a habit to set us and we would argue that it's hard for a court to simply draw an arbitrary line to say that this number of miles is an undue burden and this number of miles isn't that the under burden test require something more than simply driving distances it must be the type of obstacle and perhaps jackson is a good example of this where everyone has to go out of state it's not an arbitrary number that's being done but simply the fact that abortion is no longer available in the state the situation  house bill to even under the kind of worst case scenario is that abortion will still be legal and widely available in texas people will have to travel to get abortions but that's always the case everyone has to travel to get to an abortion clinic and there will be the vast majority of the all the supreme court has said is undue burden substantial obstacle those modifiers are very ambiguous they leave a tremendous amount of play in the joints and for an appellate court that's bound by the supreme court's precedent and for lawyers who are also bound to respect those decisions the task of a of an advocate is to construe these vague terms in a way that is both faithful are consistent with what the supreme court says but also maximizes the state's procket haves to regulate abortion under the supreme court of any of the these this issue of the mileage issue getting to the supreme court status as far as we're concerned is there's nothing on which the supreme court is granted search shari and the supreme court hasn't given any further guidance since casey the best authority i think to get back to just part of the question is casey because casey upheld the twenty four hour waiting period in pennsylvania and there was evidence in the record in pennsylvania that the twenty four hour waiting requirement to double driving distances because it used to be one trip now two trips are required and the number of miles that was alleged by the plaintiffs was that hundreds of miles were acquired for a single trip in the twenty four hour waiting period double that so casey would indicate as we understand that an increase of travel distance of at least a few hundred miles is not an undue burden because otherwise the pennsylvania twenty four hour waiting period would have been struck down but that's the most that anyone i think can get out of the supreme court's pronouncements ok i have a couple of questions in the first one is there's no evidence in the record to support the comments made in the brief about think particular facility in their safety record that you introduced is there we should not consider that as part of this record because that's to the record the bit it's has invented to what the legislature would have considered isn't it in to something to do and we don't know that the legislature considered this particular article about beaumont when it just seemed like all of a sudden you're throwing that in and it didn't seem to be medically necessary they're discussing whether the law is rationally whether the patient safety if your honor wishes to disregard what we said because you are does not think rational basis is in play we certainly understand that but we offer that anecdotal south regard because it's an anecdote that's not in the record of the case though that there's nothing in that prevents balancing can you win on a balancing test approach and and if so what would be the balancing test that you would articulate and how would you work your way through it and would it be the seventh can you win under the seventh circuit bouncing test which says if there's a feather in there if the interest isn't good enough that's a significant injury or is it the ninth circuit  a significant injury what you alanson test could you win under and which balancing test would you lose under we can win under a balancing test because the appellate courts would still be bound by the supreme court's pronouncement casey and  which up hello abortion regulations even though the evidence that these regulations would enhance patient safety was minimal consider mizoram this was a law that require all abortions to be performed by license physicians the plaintiffs in that case produced a study showing that abortions performed by non physicians or just a safe in the first trimester the supreme court upheld the law so that means under a balancing standard a law like the one in montana that acquires abortions to be reformed by doctors is one that should be upheld if the under burden test requires a balance and standard and our laws are analogous to that there are laws that ensure proper credentialing of abortion practitioners with admitting privileges and th patient safety but some of it may be you know this whole idea of a seven thousand square foot facility i still haven't understood why seven thousand square feet any more or less sterile than three thousand square feet but so is that the problem could he have if he had been more detailed with that make your case harder they've gone through requirement are a crime instead of just saying the whole thing is that there are a lot of problems opinion that that's one of the more egregious problems with his failure to enforce the severability requirement in the regulations the regulations specifically barred and other provisions in the se rules are not even alleged to cause clinics to close those can't be under burns either so that's one of the problems the other major problem with his opinion is that he didn't consider the large fraction standard which is the standard this court has  facial challenges to abortion law so there's no way to justify the remedy that he gave which was a total across the board facial invalidation of the as stables what he should have as a large fraction test or has the supreme court articulated a large fraction and neither court has established that the court both the supreme court and this court have left the question open of what the standard should be it is either the large fraction standard or it's the no set of circumstances test from salerno where assuming for the sake of argument that the most pro plaintiffs standard governs because we win under either one there's a assuming there is a multiple love fraction situation are we talking about everyone in the state of texas or are women in el paso or women in macau and it seems to me we're talking about people in el paso that that covers every woman as opposed to the state of texas where the whole state  taxes are not affected by what's affecting women in el paso where women in my county i think it's different from a supply challenge the large fraction test is what the courts to consider only when the question is should state wide relief be granted with the ass applied challenges it's a more limited remedy so the all of their claims can be addressed without applying really the travel distance grievances against this law can be completely addressed and alleviated by providing as applied relief limited to mccown and passing it cannot in any way justify striking down the application of this law in austin dallas fort worth houston or san antonio where everyone agrees there will be a s c abortion providers performing abortions in those cities so there's no possible basis on which based on validation not i think we've probably gone about ten minutes i know i gave him five minutes but we went without the clock working so you can assume you have an extra ten minutes you have about thirty minutes if you don't have to take it all but court my name is stephanie toady and i represent the plaintiff abortion providers the texas requirements challenge in this case target abortion for the imposition of burdensome requirements that will not enhanced patient health or safety and are impossible for most abortion providers to meet the district court was correct in holding that these laws impose an undue burden on access to abortion in texas in violation of the due process clause of the as rational basis employ in this appeal or not between some of the requirements and on that basis it dismissed the plaintiff's independent rational basis scrutiny claim but this court's precedents make clear that in in any case concerning abortion restriction it's not necessary basis for this law your honor throughout the brief we argue that because the challenge requirements will actually increase the risks that women face that there is no rational state interest is advanced by the law we argue that in fact not only is it the key sokolowski sales to enhance patient health and safety but the law actually increases the risks that women face by forcing that comes to m question about your driving you know across west texas and have again what i'm calling very much in a in a colloquial term a bleeding event just to cover a wide variety of potential complications now what evidence in the record is that that has occurred because we now have you know we know that during the period of this h b two we've had women driving these distances and there is testimony about that has there been such a again using bleeding a van in a very broad to cover a broad host of complications has such a complication occurred on somebody who's drawing is that in the record in other words there's what the record shows is that complications are very rare in so there is no evidence in the record about complications of that type occurring but with the record says is that when those kinds of complications do arise they typically although it's rare they typically occur after a patient has been discharged from a facility in the case of medical abortion where the abortion is induced using medications complications always occur after the patient has left the facility because the medications take time to exert their effect so the record says that it's typically a week or more after others wouldn't be on the drive back it would be a week later they're already home in the case of medical bushin that's correct and the further that a woman has to travel in order to reach an abortion provider the less likely she is going to be to return to that community if she experiences of complications of a woman has to drive two hundred miles to reach the provider and then a week later she has the drive itself is not a risky time it is because i was i couldn't really find trying to understand if the drive itself is not a risky timeframe generally speaking well your honor you think nothing's risk because you think this report portions very safe in our understand that but when complications arise do they arise in such a time period that the drive is a risky time period with the record shows your honor is that there's a greater risk now than there was before so so whatever the beast line risk may be of having a complication on the drive home that risk is increased substantially by the increase in driving that if there if nobody has these complications on the drive home and there is no increased risk i mean that's what i'm this is getting kind of circular i'm just trying to i know there's a lot of people coming to say this is a bad idea and we have a lot of evidence on that but as far as hard evidence of events did is there some because i didn't find it right there there is not that specific evidence in in the record but with the record shows is that abortion is very safe and complications occur rarely and these requirements will actually increase rather than decrease the risks that women face as a result of abortion who had do you have other are there other factors  burden besides distance is that the only thing we you have horrors or other things that you think are making it difficult for for women yes your honor that their requirements challenged in this case will have the effect of closing eighty percent of the seats abortion clinics and the district court specifically found that few if any new clinics will open as a result of these these requirements so there is a or manic reduction both in the number of abortion providers and their geographic distribution so one source of burden comes from the increased travel distances now nearly a million women are going to be more than one hundred fifty miles from the nearest clinic but also that the decreased overall capacity of the abortion providers is is another source of ops to but they are there really was no evidence i mean the problem that i have is we all say this procedure is very short very simple very straightforward so it would seem logical that the existing clinics could if it is going to logic could absorb the capacity it didn't seem like there was any actual evidence about whether whatever it is seventy thousand abortions can be performed in seven facilities or whether they simply couldn't be done is a matter of capacity can you point me to the evidence and i'm mess sure your honor there's a couple of things first of all although the surgical procedure itself is short in duration the patient actually spends quite a significant amount of time at the clinic because prior to the surgery there's a history and physical there's the ultrasound examination required by texas law for women travelling more than one hundred miles there's a two hour waiting period there's also time spent in the recovery room there are patients that come in for follow up care so there are lots of elements of the procedure that you are taxing the capacity of the facility capacity by four hundred percent in order to meet state wide demand for abortion services in that in the year following implementation of the admitting privileges requirement the facilities were unable to do that and in sac the number of abortions performed as she's actually declined even though there is increasing demand in those communities because other clinics are closing if in fact those recently now that that's an increase in demand because the simultaneously the nexus rate of abortion was going down and i as i read dr grossman he says that he cannot say in his peer reviewed publication he cannot say that the decrease in decline in abortion may come since or is there some actual evidence that the record well your honor there's a mean that the time period is very telling there's also evidence from the plaintiffs they testified that the close some of their clinics as a result of these requirements and but for the requirements they would reopen their clinics there is also the evidence about the s c in fort worth that was unable to provide abortions at the time of trial because it didn't have a doctor with admitting privileges so that the mere fact that a facility is evil to comply with is ciro quire meant doesn't mean that it's going to have any which i guess is also an as applied question and so she the evidence about her is that she was told point blank we look for a way to do to deny your privileges because you're pro you're an abortion provider which is a violation of texas law that allows a private right of action if she if they hadn't said said we're not going to give you privileges because you're a woman or because of your race or because of your religion would that also be on h b too or is that a violation of the law that ought to be pursued is a violation of the law i mean i'm very disturbed by the idea that we have to accept something that's a violation of the law all over here as a reason why the two should be invalidated either as a plot or any other way well each beat two gives hospitals the authority to veto any doctor's ability to provide abortions that's that's precisely why it's an improper delegation of law lot well it doesn't allow because the legislators are legislating against a backdrop of a texas statute that makes it illegal to deny privileges based on being an abortion provider just as it's illegal because if they're woman or race religion or whatever and so it seems like she's just accepting that and not pursuing that hospital for discriminating against her and therefore h b two is a valid a that's what bothers me if if she's being unlawfully discriminated against then that isn't an invalidation of h b two that's a lawsuit against hospitals far as i'm concerned again accepting her word and i'm not saying the hospital did that but that's her contention here and that's precisely the problem is that discrimination clean's of those  that type are very difficult to prove and that is directed at somebody told me that i mean we can't we get discrimination cases all day long about race and religion and gender and so on where there's not that much evidence and they still make it this person was told this we looked for a way to deny you rights what it instead of abortion provider substitute woman don't you think she'd have a cause of action there and shouldn't she at least produce pursue they out well your honor she she me well pursue that that cause of action those statements were me just just for clarity not to dr richter herself but to the state inspector that interviewed the hospital c e o about the status of dr richter's privileges but the record shows that throughout the state providers were denied privileges for various reasons unrelated to their qualifications are competent to answer the question shouldn't she have to pursue them out since she has a room rather than invalidating the h b to invalidate the hospital's wrongful conduct if in fact that's what occurred assuming this testimony to be correct that that's what was said then that's illegal so that's what i'm saying shouldn't  three to no your honor because the record shows that as a whole each b two is imposing burdens on doctors that are preventing them from practicing and even if  richter were to pursue her remedy in two years down the line or five years down the line get a judgment that then you know forces the hospital to give her privileges her patients still have no abortion provider for years at a time  in other hospitals denied other providers privileges and they weren't as explicit in saying it's because you're an abortion provider but they did say you know it's not related to your competence but their bylaws allow them to  deny privileges to doctors for economic reasons it's not in the hospital's economic interest to take on this particular physician it just shows that there's no real nexus between the admitting privileges requirement  and and the state's efforts to ensure that the qualifications of abortion providers in fact chapter one thirty nine prior to h b two contains very detailed requirements that serve to ensure that doctors who perform abortions are qualified to do so and the facilities that employ those doctors are responsible for making sure that they're properly qualified in addition to the regulations of course there's medical malpractise law that serves to ensure that that physicians are properly qualified i think a lot of matter because you're not willing to pursue this case against the hospital so maybe patients aren't willing to pursue the medical malpractise but your honor that's precisely why the chapter one thirty nine regulations gives the texas department of state health services the authority to to ensure provider qualifications in safa chapter one thirty nine regulations have more stringent requirements in terms of inspection in terms of quality assurance program and in terms of penalties for noncompliance in the s c regulations and in chapter one thirty five i have a question about this hypothetical question you were talking about malpractise and think you know that if you are general practitioner doctors family practice doctors deliver babies and things now in rural areas because of and i've seen th they don't perform other gone to collage functions because of because of malpractise insurance crisis issues that they face the higher things in rural areas and we also know that not as many people are going into performing abortions for whatever reason that is and people are not choosing that as a profession so there are fewer doctors that are doing this type of procedure and that's apart from h b to write and so the question is if el paso had been successfully using nurse practitioners to perform abortions either medication  abortion and they were having no problems and the perfect safety record and excellent excellent thing in the state came along and said no we really think because we are aware of problems in america elsewhere doctor people are doing shoddy practices we think you should have a doctor and we can regulate that better but you can't find a doctor to be in el paso because it's hard to find doctors who perform these functions and the doctors are decreasing we know they're retiring all over the state for a reasons would that be would a as applied challenge for el paso be sustained under those facts point the court concluded that only a single provider would be a fact did and that there were other providers at that same facility who could take on the providers patient so the court said that no woman would be forced to travel to another clinic than she otherwise would have in order to be able to obtain services if in fact a physician only requirement was imposing as you said a substantial obstacle to abortion access that would be a tougher question restrictions on the type of facilities registrations are performed must be supported by credible medical evidence and in bolton the court struck down a hospitalization requirement subsequently in the city of akron in its  companion he says the court struck down a pair of second trimester hospitalization requirements and it upheld a set of virginia facility regulations only upon a showing that opinion where it discusses the record keeping and reporting requirements that abortion regulations that are directed towards patient health and safety must be reasonably directed towards the preservation of some valid objective was the answer to this is very thoughtful your analysis is very thoughtful but is the answer you don't know whether it would be an undue burden or is the answer that it would be an undue burden or is it the answer that it's not  you know given the court's sort of consistent up holding up until that point of position only laws there's you know there's there's reason to believe that the court will uphold such a law on the other hand if it actually impose a substantial obstacle to abortion access it's possible the court might strike it down but here the issue is much more straightforward here we have a set of the sillies regulations that are targeted towards physicians towards licensed physicians and the facilities in which they operate and ask you about the facility itself wouldn't you agree that the district court's order is overbroad because it makes no effort to say to distinguish between you know taishan stations liquid soap dispensers whatever and this whole seven thousand square foot you know story that we read with all these architects and so on wouldn't you agree that there are at least some aspects of this the do not present a problem for existing facilities or anybody else to comply with and some of them that would involve some degree of retrofitting or finding new facilities or whatever no your honor i do not think that the district court's order was overbroad because  all of those regulations flow from a single statutory mandy in that statutory mandate because it fails to to advance a valid state interests and because a district court found it was motivated by an improper purpose it invalid in all of its applications and because the statute is invalid the implementing regulations are necessarily invalid in all of their applications but even even if the court were to reject that theory and we're to look just you know at the a fact of the regulations the evidence shows that you know that various regulations scattered throughout this you know these hundred pages of requirements would impose an undue burden on a that there was no advert to parse that at all it seemed to me and the court found a rational basis so it's not set you know the district court wasn't saying wow this whole thing is just completely irrational there's nothing to pars so it seems to me that when you're going to have a remedy of invalidating a law say why on its face you have to at least say you have to least go through and say well the soap dispensers are ok but the thing about the seven thousand  out of whack despite a very strong severability cause we can you can you defend yes your honor the supreme court's decision in ai makes clear that it is not appropriate for a federal district court to engag ended for the lower court to to consider what the proper remedy was here in order for the district court to meet to make those kinds of determinations we were to have we would have had to had a two month long trial to go through and present evidence on each and every requirement to what extent nothing wrong with you all doing that was that if you thought you needed more time to go through the trial why wasn't there a two month long trial because the supreme court's preceden council that it's not appropriate for a federal court to engage in that kind of detailed rewriting of a statute waited for a federal court to just hold still invalidate a statute is it i mean the problem is you can't have both ways the state is darn thing and yet for convenience apparently the court's too busy to take time on this is that the argument no your honor i was just highlighting one of the practical considerations that under underlies the supreme court's instructions and as it was all the direct testimony was done by academics where i mean there was plenty of official see here so it seems to me that before you invalidate a statute that texas spent a lot of time passing you take the time you need and whatever that is and i believe this judge would give you the time you need i'm not accusing the judge of being not being willing to give you the time i don't find that an excuse you know absolutely your honor but texas also undoubtedly spend a lot of time in acting it's school finance system and the texas suit and that system of regulations included a severability clause and the texas supreme court concluded that notwithstanding the severability clause in that statutory scheme it should be struck down in its entirety because the provisions that it found to be unconstitutional were interrelated with the rest of the scheme that the that sort of situation these are really specific things you could say you have to you have to do the administrators requirements you don't have to do the physical plant these are very broken out they're not intertwined interwoven thank you cited are villages case this is not like village where the whole thing was based upon the criminal the court agency to adopt a system of regulations that that makes the abortion facility requirements equivalent to the a s u requirements and that that concept of equivalency is a unified and and it does create a unified interrelated statutory scheme but if this court disagreed as you know the district court did make specific findings and the record contains evidence that at a minimum the physical plant requirements impos undue burden on abortion access that all of the requirements that incorporate by reference chapter twenty of the n f p a which is a fire safety code impose an undue burden as in are inappropriate for abortion facilities in that that the and the record that's first question ok i'll go ahead i'll take that one your honor as as the record demonstrates and as marilyn eldridge testified at trial reproductive services absolutely intends to to reestablish a clinic in el paso and is taking steps to do so it is just recently signed a lease of a new facility and will submit an application for licensure shortly the reason for the delay isn't because the clinic was was dragging its feet or because it wasn't actively working to reopen but as as the record evidence shows it is not easy for a clinic that has to close down two mediately reopen and particularly not a nonprofit clinic like reproductive services that had to lay off all of its staff members it had to let go of its facility at least because it can afford to pay the rent anymore had to put all of its equipment in storage and so on when did all that occur that occurred i believe back in april when dr richter lost her temporary admitting privileges can no longer provide abortion services but the what's different now  hurdles of reestablishing the medical practice but they have been actively engaged in doing that it's it just takes some time to get that into intend to do that so second the jackson case relies heavily on ga which says that you can't export your constitutional obligations that how does that apply where the state of texas would not be exporting its constitutional obligation and that it has a number of clinics open how would the gains theory of jackson apply to texas in this circumstance right your honor it if a woman in el paso would need to travel five hundred fifty miles to reach a texas abortion provider that's an undue burden texas can't get out from under the undue burden finding by saying we're going to rely on mexico to satisfy that woman's constitutional rights like hanted because what says that it can't because jackson relies upon gains to say it's the only one and you can't completely explore washing jacks be limited to the it's the only one princip this this thing is you've got an injunction that by nature is an equitable remedy and you're asking us to completely ignore the fact that both for h b two without regard to age three to this border area between zero paso and new mexico operates as kind of one town people go back and forth just like texarkana texas and texarkana arkansas under your theory there was an abortion clinic half a mile over the border in texarkana but it was arkansas we would have to not look at that at all and start ranking people drop we know that nobody is going to drop five hundred fifty miles they're going to go to new mexico and you're asking us to ignore them not based on a case involving a city that's not on the border and where it was the only abortion clinic in the whole state that seems like a stretch when your time out and everybody remedy so tell me how you get out of that here your honor it's important to remember that new mexico in force is neither an admitting privileges requirement nor n a s u acquirement so what the state of texas is essentially doing is forcing its own abortion providers out of practice because it says these requirements are necessary to advance patient health and safety but then it's shuttling those patients across the border where those requirements enforced there's there's no good reason to force patients to travel to mexico to see a doctor that doesn't have admitted many privileges actually shuttling them is i mean they don't the state of texas isn't running a little abortion shuttles or something i mean i'm not trying be frivolous here it's that those people were already going to to the new mexico because it's so close and they have good facilities there and that sort of thing isn't that in the record do it under the record that those patients were going to reproductive services in the other provider in el paso to obtain service record does not show they were already going to new mexico to get abortions will your honor not not prior to the closure border the record doesn't actually show that you know women were crossing the border at all it's just a presumption that the state has me and can ok so that's we've talked a lot about how it's applied we haven't talked  and the breach your brief says that the district court was correct in concluding that these requirements will operate as a substantial obstacle to abortion access and a large fraction of the cases in which they are relevant that's at page sixty four of your brief the district court didn't actually conclude that they will operate as a substantial obstacle to abortion access and a large fraction of the case the district court didn't use the term large fraction of the cases did it the court looked to the population of women that would be impacted by the law that would face a meaningful burden and then it discussed whether that burden would be substantial out does that mean that any state that has a large population is automatically going to violate the large fraction test it's a business going to be triggered because if you're just looking at the population as a whole then and you're not trying to do a fraction of the people who for whom the law applies and big states lose the large fraction test automatically is that your point though you and i didn't mean to suggest that you're certainly looking at the population of women who are affected in the you know what is the large fraction of that that's a what percentage of the women are affected well your honor the district work included a significant number of women who are going to be burdened by law would be actually deterred from obtaining abortions and that's the same predicate that the supreme court found in t c to its conclusion that a large fraction test was satisfied the evidence show that the best case for you taking all the facts is true that that percentage is one fifth or one sixth of the women your honor that the once if there are one six member refers only to that the women would be more than one hundred fifty miles away from the nearest clinic and certainly that neither the supreme court near this court has ever created a bright line rule that on many women or is it eighty percent of the women are affected is it seventy percent of the women in texas who are affected  hundred percent first of all you agree it's not one hundred percent so if this broadens is not satisfied here right your honor we agree that the fraction is not one hundred percent and to satisfy barnes you'd have to have one hundred percent right well the arms were applicable which is our precedent you'd have to have a hundred percent right well plaintiffs have certainly argued that the statute has no valid applications because it fails to further a valid objective and it an improper purpose so even if that were the standard i'm talking about our press you know we're just a lower intermediate court where an inferior court and we're not here to make abortion policy for america would be inappropriate we are ill suited for that we just all we do is apply our existing precedent to the facts of your case so under our existing precedent we didn't you don't have to show that there's a valid furthers the valid purpose or serves a state interest idea to ask him some type of opposing counsel some hypothetical maybe our existing precedent doesn't say that but soon with me that our existing precedent does say that in our desisting precedent requires you to establish that that there is a large fraction of women affected just this record as stablished that a large fraction and what is that fraction yes your honor so there's two things i'd like to say in response first just in terms of this court's precedent there's another barnes case barnes versus mississippi ninety two federal second thirteen thirty five at page thirteen thirty seven of that decision the court says quite explicitly based on the rationale for an abortion restriction actually furthers a valid state ensure that we've already said that that barnes case doesn't apply so in that way that you're applying it we've already said that so we have to go with our previous interpretation of that barnes case regardless of what our personal if we were looking at it fresh we have to keep following our precedent over and over again and so we've said what the rule is in abbott too so i'm asking you under a what is the large fraction how do you reach your facial burden or your honor i disagree that abit too stands for that proposition but to answer your question about the fraction the defendant can see that at the very least the fraction is ten percent plaintiffs and in their brief you know explained why the entire the ten percent figure is too low but even even if we took the fraction to be ten percent that satisfies the large fraction tast defendants can see that the challenge requirements effectively destiny abortion access in the state of texas in key c the court invalidated the spousal notification address that point about the el paso i was really concerned about the el paso as applied issue because to me it seems fictional to ignore new mexico on the other hand she makes a good point that why is texas sort of fobbing off people onto a state that has arguably less restrictions if these restrictions are so necessary why send you know texas women across the border for places that don't have that so can you address that because i just i find this a difficult thing to address the way i think it turns on how the court reads the jackson against her your opinion does the court read it as a status in the per se rule that out of state abortion providers can never be considered mexico is kind of a defense against the as applied and yet that seems to undercut it seems hypocritical is the argument of your opponent and you haven't really given me an answer to that i don't see that it's hypocritical at all we certainly take the view that it's better for court limited to all possible you'll still have a region of the state where there's an abortion provider that's not doing it in s c and that's still an appropriate remedy if this court were to find that there's an undue burden so either way they'll be an option for patients  get the abortions that non esses either by traveling across the border to santa teresa in mexico or by getting the middle passage of the court decides that as applied relief is appropriate so either way there's nothing we can do about the possibility that patients may still go across state line view are going to get substandard care however we will when we wouldn't say that it's some standard care but we would say that it's care that is less than optimal and less than the standard that the legislature has established it's legal for them to do that it's always been labele across state lines to get an abortion and there's a constitutional right to travel so even the state wanted to do something about that we couldn't do something about that it's just the best that we can do now is tony also said that patients in el paso are not crossing state lines to go to mexico that's false there's evidence in the record from dr thiering he's the doctor who runs the hilltop clinic and i'll pass over the competitor to reproductive services and he testified in his deposition that most of his patients at his new mexico clinic are from texas in our to corpus we don't know what the trip is like in terms of the evidence in the record we just know what the driving distance is and casey again is very instructive because the twenty four hour waiting period in pennsylvania was upheld many rural parts of the state had regions where there were no abortion providers and hundreds of miles were traveling to abortion clinics supreme court so that was constitutional so there is that one whole thing that's helpful from the supreme court on travel distances that's the only guidance that an appellate court has to go on and that's what we're relying on  be one of the biggest states i mean you know that pennsylvania while it's big is not as big a stack quite as big but big lies but there were hundreds of miles of driving distance in that case in the supreme court upheld it now judge i'm sorry we be concerned and sh nonpresidential ruling only that remains bound board were saying we don't like her nelson i'm not saying that they're saying that because they didn't say what the reason was we're still stuck as the inferior intermediate court to follow or binding precedent issue to me that biggest issue there was status quo i mean the status quo was you didn't have these facilities or at least there were they were existing without and you can't immediately stretch or fit your building and so i mean to me status quo is the biggest issue from court faced on that that's how we would interpret the ruling we don't but that said it's not a positive that they came out the other way from you and so i mean we do have to look at that even if it's not precedent it's still instructive i mean the problem is we're riding against a moving target because you said there's a circuit split that increases the odds they will take something that we're while we're writing may become i think irrelevant i think it's helpful to look at what the supreme court did recently in the voter id cases there were a whole bunch of last minute sessions brought to the court has come out and they vacated the ruling in wisconsin even though that law had been struck down but they allowed the texas law to go into effect hard to see how th clearly went on the facial because there is no burden imposed at all on the patients in large metropolitan areas dallas of fort worth and austin san antonio the only difficult question under the seventh circuit test is all paso and macallan and we would be helpful for the court to emphasize that on whatever standard the supreme court might chips we clearly win on the seychelle challenge and the only difficult question becomes what's the status of the as applied claims in all paso and macallan if a balancing test were to be generalized balancing approach and one is the non balancing approach of the fifth circuit the point i want to make is that the facial challenge is an easy case no matter what the standard is the harder questions come in the as applied challenges and i'll pass one account and there's no way they can win on the balancing test on the facial as applied relief would be granted in el paso or macau and it should expire as soon as an h p two compliant abortion provider emerges in either of those areas and of course no for the questions i think the court thank you both for upstanding presentation this is a very difficult case  i'm assuming most of you are not here