posture of this case on the th one thousand votes in to dismiss this is not after discovery this is not after depositions we do not have all of the facts fully enunciated but as played in the complaint the facts are very clear that miss thomas  language and paragraph to impair read three that i think are regularly answers your question i think this is very important that the legislature you have to presume that when they created this session when they put it out there whether it's for policy reasons or whatever you have to presume that they did it with with intent they did it with reason and it was a noticed in preparing for this hearing is that the legislature specifically chose to use two different sets of words in correct two and paragraph three in paragraph two they said that the wrongful death of a fetus caused by an abortion is very different from what they say in paragraph three in paragraph three they say the wrongful death of a fetus based on the alleged misconduct of the physician now when counsel was talking about this nature in your questions she routinely would leave out the four grand full and save the death was caused by an abortion and this is where the williams case becomes and so important to this analysis especially with that language of caused by and based on the entirety of the wrongful death and is premised on an injury to an individual in this case a fetus dead then leads to the death we have read directly in our complaint injury the fetus as a result of the actions of these doctors now when you look at the the basis of the wrongful death having to be any injury to the individual in this case the fetus that's the precursor event is the injuring to a person they reference written head injury takes effect yet they say he's directly from the rest of the fetus we have three different possibilities when three takes place when the injury takes effect the red death so if the legislature is opening up the possibility that any of those three could apply to the fetus now when you look at paragraph two and it says that the infant death has to be caused by an abortion that the condition should have known about the fact that the patient is pregnant and does a procedure to cause a damage to the fetus and says that it doesn't tell a couple of the says you need an abortion  him damage and that he doesn't know the actor or he or she may not know what it cost injury but knows it possible had an effect on the fetus is worried the something could happen in order to avoid any kind of  paragraph too doesn't even apply to the facts of the case that we have in front of you and it doesn't apply to your scenario because it's not just that the death is caused by an abortion has to be the wrong for deficit caused by an abortion because they used the word wrong for when you have to assume that they fully issue i think you could look the paragraphs two and paragraph three taken into account the williams case and the wrong stand in history of the fact that the the wrongful death act is an derivation of the common law so in a marriage to have a wrongful death case you have to have an injury that the person who eventually dies has a kind of disability actually right to pursue and then either your scenario where what i'm suggesting in the facts of this case the injury occurs to the fetus and then there is death later as the defendants have pointed out as you said several times just had because an abortion a curves it can't be the only question it can't be just that if abortion occurred therefore there is nothing and this will leads to your scenario well if the doctor himself is the one that doesn't know if the doctor realizes he made a mistake and that scenario has caused an injury and again the clients i'm asking for the ability to go in and prove that there is a direct injury to the fetus which then led to the death and then the parent too was not in the pickle because the reason for the death was not caused by the abortion wrongful death was just the abortion itself is just that an event that was required as a result of the actions of the defendants you know and justice really i'm sorry judge or like pointed out to eat we cannot interpret statutes lead t said i understand the wrongful death as you pointed out and williams has to have a precursor injury right that the the right case the right they did not address in that case whether there was or was not direct injury to the fetus before in the light case came out and concluded that we do not believe there is a wrongful death cause of action now they cited to paragraph two of the wrongful death act but their actual ruling should've been there was no injury to react as a precursor event to the to even apply right in our situation we have a very different set of facts we have to reckon we planted a direct injury to the fetus as a result of the actions of the defendant's now as i said i think you can look at paragraph two and paragraph three and read them very clearly without having to go through a lengthy statutory interpretation if the ran for best itself is not caused by the abortion religion here the wrong for better is the actions of the defendants it's not caused by the there's a case where you have no injury to the fetus and under your scenarios if you have no injury to the fetus of any kind the really actionable injury becomes the abortion itself because that's the only injury of any kind to the of fetuses and it doesn't matter what the age of just they should write so paragraph two and three are then exceptions to those rules those are those are exceptions to the rule that would be enacting legislation which is then paragraph three catches that cause it i think you can argue paragraph three catches that you could also argue that it just makes it that paragraph two doesn't apply because there doesn't then what you're alleging doesn't matter whether it is abortion or not you're correct because what you're talking about is the wrongful death action is the injury that led to the eventual death right and then in that situation where you had as a wrongful death action premised on the injury to the she said which would make sense that that's what happens every time there's an abortion that who knows that the woman is pregnant with a couple obviously yeah does how do you reconcile that i guess i don't think that there's anything to reconcile in that situation the under the paragraph three well we're talking about is again we're talking about an injury to a fetus that is based on the rest of malpractise of the duty of the physicians so you can really to have it in order to have the language acceptable in paragraph three right the wrongful death act does not apply unless you have a death and we're talking about a fetus so there are really a certain number of ways in which you can have a wrongful death action of a fetus all right so we have to have some action to cause the death of the fetus if the baby is born and then something happens section two point two doesn't apply it's a rhythm section at that point so we're really talking about what happens to the fetus if there's a death is it is it still morning is a blade alive and then it's a late term abortion all of those things shouldn't matter because what we're talking about in paragraph three is a situation where we have a doctor committing malpractise that causes not a situation where you have to say that paragraph three applies right paragraph three is an exception that says there is no cause of action in the scenario factually based on a pleading that scenario doesn't exist so under her theory it's doesn't apply because the facts are different all right says something different if the exception doesn't even apply in that sense because if you look at the williams case as we've discussed the injury itself is what creates the cause of action so they're talking about an exception to apply paragraph two doesn't apply because the wrongful death was not caused by an abortion again the death may have been but not the wrongful death because the injury occurred to the fetus  clear the defense agreed that the question was properly phrased that the time this question starts with the five words does this bar a cause of action the rest of the question i'm sorry does section two point to bar cause of action when these facts are present right so his question is it does not answer itself unless you subscribe to the defendant's theory that just an abortion occurring automatically means that you can never proceed under section two two that's the only way that you can say that the question answers itself the issue here is when you have this set of facts as played by these plaintiffs does this by cause of action under section two two i think the answer to that is clearly no  now there's also the discussion of viability in judge or let's use of the words non viable it seems clear to me the judge early it was not reference seen whether the fetus itself was viable in terms of time from gestation when he says in that bustard is based on the actions of the defendants that the fetus becomes non viable because of the injury caused by the defendants does that then create the of bar the cause of action when it becomes non viable so his his question of as to the use of the word viability is not about whether a fetus is viable that's not the way i read question or improper results i've already given you a way that i think you can read paragraphs two and three without having any issue of of going through the statutory interpretation of the legislative history  but it's very important to point out here that the defendants in this case cannot deny that if there is injury to that child that fetus and she had taken the child to t and say was born alive in the head injuries and then died as a result there is clearly a cause of action for that fetus and that becomes a child under the wrongful death that they cannot deny that if that child is injured during the pregnancy me i agree with that and that's where i can't i can't sit here and delighted if you look at this statute and say that just because there was an abortion the best with the cause of the death of that fetus that that in a no that selfish but in the language of paragraph  two i have no argument to that is that your conclusion i think that's a clearly wrong conclusion in this situation though because it doesn't take into account the way the williams court talks about the injury which is the precursor and it doesn't take into account the the session torie interpretation that the legislature intended when they use caused by when they used a stop right if i understand their argument i fully understand their argument and i certainly disagree with it i don't think that's what the legislature intended and because if you read it as  pareto in paragraph three create different results where reasonable people can disagree you look back at the legislative history oh rainy day when they actually had to this they said one hundred percent clearly the pair could this a paragraph to is only to immunize those doctors who perform the abortions better laughter and with consent that was the purpose of it could be written better i don't know maybe but the end result is they said that's the purpose of it so if there's an ambiguity in the statute if you misunderstood thanks very much as my time of thank you very i'll be free there isn't a word in the legislative history that has a limitation they counsel to stay so this one point yet the point is mr the argument here has been about injury and about williams and about the situation that isn't involved here really doesn't say that every time there's an injury there is a growing for back the action william says as a precursor to h