may please the court matthew couldn't for the appellant i'd like to reserve three minutes for a bottle all right kentucky's house bill four hundred and fifty four dollars does not been a particular method of abortion all it does is it changes how the abortion must be performed by requiring that a reasonable alternative procedure be performed the available reasonable procedures that are alternatives are not new to the medical profession instead they've been used for many years they're well studied in the medical literature and are currently used by physicians here in ohio and elsewhere the supreme court's decision it can solace versus carhart specifically allows kentucky to change the how of an abortion procedure gonzales holds that abortion doctors do not have quote unfettered discretion in the course of their medical practice it also holds that quote physicians are not entitled to ignore regulations that direct them to use reasonable alternative case says that rule fifty two does not apply in this circumstance requires an independent review of the record i do judge bush getting to your question i do think that under gonzales deference is given to state legislatures think it's always talked about deference in the area of medical uncertainty and it talked about that towards the middle of its opinion it only got to deference to the legislature at the end of the opinion the difference that we're primarily talking about here  alternatives and while we don't think there is medical uncertainty as to their effectiveness we think to the extent the court thinks there is a deference to the court is written deference the state legislature is required und that testified that the partial birth abortion procedure which had been banned there that that was significantly more dangerous for for certain women with certain characteristics and there were other experts that testified that  uncertainty is quote unquote sufficient to uphold the statute against a facial constitutional challenge to the extent the court thinks there's uncertainty about the safety of the alternatives or the reasonable alternatives i think that can solace dictates deference to the state legislature in that circumstance i do want to mention a part of kin solace that i think puts the thumb on the scale in favor of what the commonwealth has done here as i mentioned earlier the alternatives that are allowed under the statute or injections of potassium chloride to jock's and umbilical cord transaction was actually talked about two of those alternatives so we think that's a thumb on the gonzales said talking about these two up alternatives some doctors especially later in the nd trimester may kill the fetus a day or two before performing the surgical evacuation and at the conclusion of his opinion gonzales came back to this issue and it said and i'm quoting it appears likely an injection that kills the fetus is an alternative now the alternative is talking about there was to partial birth abortion but if it's an alternative to partial birth abortion it's also an somehow altered the medical uncertainty holding of in solace and we don't think that that's correct st heller stead did not say that it was altering consolidate in fact it expressly relied upon it and in the when the supreme court has dealt with abortion case law and the changing previous case law they tell the lower courts about for example in casey the court made clear that it was keeping the heart of roe but it told us they were abandoning the rigid trimester framework so here the court preserved its command that state and federal legislatures have wide discretion to pass legislation in areas where there is medical scientific uncertainty up the plaintiffs argument on heller stead reduces to the notion that stead somehow undermined the reasoning of gonzales and i don't think that's a decision for this court to make we've sided in our brief in ohio cited in its amicus brief the ag decision that talks about the court's job this court's job is to apply the most applicable precedent not to guess about whether reasoning has been undermined moving on to the nd arrow that we critically or that we think the district court made here was that it can example did jock's in injections let's start with that one that is not a new procedure there's a study that was relied on a trial called the hearns they said jackson has been quote widely practiced in the last twenty years when the one so the answer to the answer to that is largely no and let me explain the qualification the district court here said that it would but the testimony at trial was that for women who are between fifteen and sixteen period we think that that's clear that that's been allowed in the district court did not deal with that in its in its opinion to the judge clay i think your question had an inherent question about the the additional risk that this additional procedure imposes and i want to discuss that directly and i want to discuss that by talking about what i think is an admission that the plaintiffs have made in this case in their plea in their in their complaint they pled that the d n e procedure is quote one of the this medical procedures in contemporary medical practice we put on evidence in our hobday trial that these fetus sidle injections that are required by hospital for for the four are safer than the d n a not just that they're safer but one of our expert testified without contradiction that the risk from d n e are astronomical a higher than the risks associated with the to sidle injections that's dr barry who testified to that so taken that testimony which the m w did not contradict trial they're telling you that this is such a risky procedure but it is astronomically safer than a procedure that they played in their complaint was quote one of the safest in the in contemporary medical practice we think that's an important point that overrules all of the district courts discussion of risk the district court said hey did jackson could have a risk of infection or risk of extramural delivery but the question for the district court was not whether there's a point of the matter is that intra fetal to jocks and injections are ninety eight percent effective according to their own expert and we put in evidence that she may have been understating things the one study that had one thousand six hundred women who received the injection it was one the hardest issue in this case is what to do in the case of a failed injection again assuming the two percent failure rate it's successful ninety eight percent of the tom this court has looked at the large fraction analysis which is what's required to invalidate a statute in this circumstance facially which is what the plaintiffs have asked and has said that twelve out of one hundred does not constitute a large fraction so assuming work talk about it or the law would you agree the law would impose failed injection i would submit to the court that if there are concerns about what happens when there's a failed injection i think the proper remedy in that circumstance is to craft just very very narrow as applied in validation there under the i ought to sit in which is what we've discussed and it's very very similar to i i the court there talked about how the statute was constitutional in all but a few instances in ohio in this amicus brief talked about the court challenge that it has to its d n a statute and in judge barrett there from ohio actually crafted narrow as applied relief as to a failed jackson just like that so we d s until fifteen weeks and in some circumstances dr franklin acknowledged maybe sixteen weeks i'm so just play yes i agree with you that the applicable time period here is fifteen to twenty one six weeks l and p c my time is expired thank may please the court good morning andrew beck representing the plaintiffs and police under decades of binding supreme court precedent a law banning the most commonly used nd trimester abortion method is unconstitutional as this court made clear in north no no patients of m w testified in the case the court heard expert testimony discussing the practice of these medical procedures and it also heard testimony from physicians in terms of what these procedures meant for their patients under the for d about that study dr thorpe conceded that the study to further research is necessary to determine whether or not patients would actually prefer fetal demise if they understood that it provided no medical benefits essentially the patients in that study were asked and the assumption was that the procedure performed would carry a medical benefit and further research would be necessary to determine whether or not they would be out but in any event the d what would be worse i'm not sure it's reflected in the record your honor but my understanding is that the patient the physicians would counsel the patient that it carries risks including risks that aren't justified by the benefits  position if the patient wanted an abortion procedure and wanted that to be an injection prior to the procedure they wouldn't be able to obtain it at m w because it can't be provided there so would you agree that there could be a potential conflict of interest between the patient who wants to the evidence in the record establishes when patients are informed of facts including the facts of the procedures carry no medical benefit the fact that the state interest that the state is invoked here about the possibility of fetal pain perception is nonexistent during certain doctors around the country do perform to jock's injections although undervalue different circumstances than what kentucky is talking about here and that doesn't take away from the district court's well supported findings that the procedures carry significant health risks so in terms of what the practice is nationally in terms of the limited number of doctors who do perform these procedures st of all no one is performing it before eighteen weeks when half the d n a s in kentucky are performed  among the doctors who attempt this procedure they don't do so in the manner that kentucky is insisting upon here because no one in the country attempts and injection without the ability to perform a d n e in cases of failure we know the injections fail up to twenty percent of the time mr mackinlay found in cases where there is a contraindication if the injection can't be accomplished because the woman is obese or because she has fibroids persevering scar tissue or factors related to fetal positioning  one no your honor absolutely not because the determination as a medical matter st of all it is a little practiced procedure and the consensus from major medical associations including the society for family planning which sets the gold standard in this area is that the harms don't justify the benefits and so plaintiffs in this case are well within the majority practice of doctors nationwide performing abortions who don't perform the procedures precisely because they carry such significant health risk doctors don't perform procedures in general that harm their patients and that carry no health risks that's true of medicine in general and the doctors in this case practice medicine according to evidence based standards and what the evidence shows are just mckinley in this case and judge pickering we found reflecting a consensus among fact finders that the docs and carries an elevated risk of extramural delivery which means the patient goes into labor outside of a health care setting whether that be at home in the grocery store or delivers and have hemorrhage and require a blood transfusion that's going to happen one out of every fifty three dollars times a person has a doc's an injection that's reflected in the testimony page three or four  going to suffer an infection one out of every three thousand and sixty one dollars out of every thirty six dollars women in kentucky forced to undergo these injections is going to have an infection that otherwise would not occur infection can be an extremely serious health condition leading to can require hospitalization and emergency room visits that study further reflects that substantially elevated rates hospitalization and emergency room visits among  because everyone in this case agreed all of their experts and i think kentucky itself agrees there is no procedure without medical risk and so we're necessarily talking about layering additional risks on top of that the statistics i just quoted to you from the record about the risks mckinley decided to rely upon what the record the best studies in the record what the best testimony in the record established which is these procedures substantially elevate those risks he didn't adopt their experts testimony and that takes us back to the clear ever standard the words clearly erroneous did not come up in the argument until this point from from the other side here and the fact that their opening brief didn't even mention the the words clear error except in the  passing reference in the standard of review is symptomatic of their failure in this regard the clear error standard has to pay particular deference to judge mckinley here who had the opportunity to view witnesses giving live testimony he could make credibility determinations judge witness demeanor and it's not enough to pick lines of testimony that kentucky wishes judge mckinley had found persuasive it was incumbent upon them as the th circuit  williamson to show that there was no evidence upon which judge mckinley could make that determination and of course that's not true here because literally every single court that has looked at this evidence has reached the exact same determination and that to another important point about true here as the th circuit to find these factual findings the rd circuit in the farmer case the kansas supreme court in the d n a challenge out of the state court system all of these findings have been reach based on the same body of medical evidence affirmed by multiple appellate courts under those circumstances a factual finding according to the supreme court is even less likely to be clearly erroneous and so kentucky is really swimming upstream here interpreted comes all this and said here is what kinds always means on of these circumstances it is not enough for a state to assert a state interest ballot is that maybe in the abstract the court has to also look to the nature of the burdens and whether the burdens imposed a circuit made clear in the williamson case of the th circuit held in the planned parenthood versus box case there's just no support for the argument that there is shifting undue burden standards that vary depending on the nature of the state interest there is a single undue burden standard and how in our brief your honor we think the evidence shows that as the as legitimate as some of those interest may be in the abstract there are real questions as to whether or not this law advances them but i think the more fundamental point is this the th circuit acknowledged fully the nature of those interests on an identical or similar record concerning a similar law and nevertheless held that no matter the nature of those interest no matter how much the law dance those interested we think there are questions about that but the th circuit credited those interests and said it doesn't justify the burdens the because this law would result in the elimination of abortion access in kentucky starting at fifteen weeks because the procedure of the state says her work around are in fact not feasible and would subject patients to significant health risks in short because the law doesn't deter the procedures don't do what kentucky says they do abortion access would dry up entirely that is the essence of a substantial obstacle and no matter number of sub specialists in other states and with respect to kentucky's argument that regard i would direct the court's attention to the supreme court's decision in danforth where the supreme court made clear that the analysis focuses on the competency of the doctors in the state to perform the procedure in question in damn th missouri had pointed to a little used procedure provided elsewhere in the country by specialists and the supreme court said no the analysis focuses on whether the doctors at clinics can perform this quest this procedure and with respect to that question concerning potassium chloride the consensus once again of every single court who have looked at this evidence is that even trained qualified abortion providers and clinics can't perform this procedure because it is so specialized that's only done by they let's talk about the procedures both of the doctors talked about how they thought that they would be comfortable they were less than clear but the best read in the testimonies they thought they could be comfortable doing i court that a survey of abortion providers has been done and one in four abortion providers nationwide are already regularly regularly performing fetal demise procedures and i would note that when you look at the data dr thorpe testifies about this that eighty seven percent of the providers who are regularly doing these procedures are o b g y n it's the doc the plaintiff's doctors are o b g y n and under gonzales and they cannot sit on their hands i know for the court that there are two clinics currently here in ohio that are performing these procedures surely plaintiffs doctors in kentucky can live up to what their the doctors here in ohio are doing i know for the court that in the in the ohio case that there were two abortion providers they were already doing to jock's and injections judge barrett let the law go into effect and the rd abortion provider recently filed a notice with judge barrett that said it's quote taking steps to begin to jock's and injections this is something that if the law were to go into effect the plaintiffs it was one in four hundred and eighty seven percent or o b g y n yes they answered judge bush's question the evidence as to preferences of women the studies that we'd like to court to look at are jackson which said that ninety two percent of women have a strong preference for fetal demise beforehand the new good tola study is the other seventy three percent of women have a preference the new catullus study was the one that was funded by planned parenthood where planned parenthood required to jackson before all nd trimester abortions i want to  nonexistence of medical benefits i think if the court looks at the sentence before the balancing test it's clear that heller stead is focused on medical benefits and that makes sense right because medical benefits can be studied they can be looked at rigorously and they can be weight the state sovereign interest in respecting unborn life and protecting the integrity of the medical profession those are intangible immeasurable interests and so heller stead doesn't make sense in that context in conclusion your honor there was testimony at trial from opposing counsel the benefits here the district court found that the benefits are basically admitted and so i think that's a very different circumstance from heller stead where they noted that texas conceded that oral argument it couldn't find one women for whom the admitting privileges benefit benefited the benefits here are substantial so in conclusion we've asked the court to reverse the district or there was testimony at trial that of a d n a abortion where a doctor witnessed a beating heart come out surely the commonwealth of kentucky has