of medical disagreement the district court below concluded that there is a division of opinion among highly qualified experts about the necessity  necessity for and safety of the disputed method of abortion and the issue the appeal presents the question whether that division of opinion compels judgment for the government under the line of cases including turner versus f c c and jones versus united states or alternatively whether the division of medical opinion compels judgment for the plaintiffs under the plaintiff's broad reading of stenberg versus carhart you disagree with the district judges assessment of expertise and that is to say this is judge was quite careful in saying that she thought that some of the government's expertise limited to their areas of practice we do disagree with that assessment most fundamentally because we think the w  the government's experts were permitted to testify on and did testify on complete comparative safety of the procedures which i understand berg is the factual question to be  to the extent that the district court said well there are differences in experts between an o b g y n and on the one hand and surgeons on the other advantage they have on the other hand the o b g y n treat women manage pregnancies treat women who have difficult pregnancy east deliver babies are experts in the relevant anatomy the development of the fetus and so on they provide follow up care unlike many of the surgeons and therefore can assess long term complications which is one of the concerns that issue here so you have judge watcher you have expertise in both categories of people and i don't think it is plausible to say that someone like d lockwood one of the government's experts who is chairman of the o b g y n department at the yale medical school is not fit to deliver significant opinions on the issue presented in this case so to that extent we do disagree with the district court but most fundamentally we think the weighting of the competing evidence among most doctors goes far beyond the permissible scope of substantial evidence review let me back up a little bit on a broader question if stenberg in fact and case the record established approach of a person a rule that their mother must be to be constitutional statute must have a health exception to the findings matter at all from regardless to whether the district court that or we look at congressional findings you would you would have to you have to construe stenberg as doing two things number one establishing a per se rule regardless of the facts and number two applying that principle even to a situation where there are it's a federal statute and there are congressional findings right now what we've said and at least then was done that we've interpreted stenberg in our court as finding as applying a per se need for it but that doesn't it doesn't address the factual question whether there is a need but before we leave that the supreme court did address that in stenberg why should we wait for the supreme court he the evidence or wants to reconsider its opinion and that because in stenberg it based at least in part looked at the evidence and then i'm brask the case well if you choose to hold this case  is relevant to the questions presented here i think it cuts in favor of the government because the one thing the case she made clear is that strict scrutiny is not the relevant standard for review of abort restrictions and one of the arguments on the other side made against application of turner is the argument that turner does not apply to strict scrutiny that's an open question at the supreme court level but we know turner does apply to intermediate scrutiny tzschirner itself was intermediate first amendment scrutiny roster versus goldberg's intermediate equal protection scrutiny so we know turner applies to intermediate scrutiny and we know from casey as this court said in the tucson women's vs eden case we know that casey establishes the standard of review akin to intermediate scrutiny so basically you would say that there would be heightened scrutiny if not more heightened scrutiny than you would have in turn or you'd have to agree taught i mean i think i mean i don't know how finely one can slice things we're talking about the genus of intermediate scrutiny and it seems to me that's the relevant universe and we know as i said turner is a first amendment case where we know content neutral restrictions get something that the court has called intermediate scrutiny we know from roster that turner like principles apply to sex based discriminations which get intermediate scrutiny and we know from jones jones versus united states that turner like dispositive was that they very addressed facts on interstate commerce in a context where congress was regulating noncommercial activity findings in the case involving abortion that's true judge reinhart we don't have a supreme court case addressing congressional findings in the context of abortion so i think the most analogous cases we have with respect to congressional findings are the ones i've been just discussing with judge thomas but you have a supreme court case addressing the issue of congressional findings it's precisely our argument why stenberg is certainly the beginning of a legal analysis but can't possibly be the end of the stenberg that the court found with the nebraska statute was that that statute defined the prohibited procedure you know way that was both vague enough and potentially bro not to encompass the da any method of abortion and the court said of course d n e is the leading second trimester method it's very safe it's overwhelmingly common and to the extent  stenberg why precisely and marilee defining the prescribe procedure not by reference not by vague reference to delivering a substantial portion of the fetus like the nebraska statute but rather by defining specific anatomical points to delineate between on the one hand the so there's a clear line of demarcation and well there may be a clear line of demarcation in terms of what the statute defines and as a partial birth abortion right but judge hamilton careful opinion says what a doctor actually performing an abortion is going to have trouble knowing as he or she goes through the procedure what that's going to end up with and  egnos whether you call it something out and then as you point out there is a further question of what is what are the practical consequences for the doctor and in the operating room w have to the doctor goes in and we know we know that he can try to discharge to kill eight through a classic d n e or he can try and he or she tries to perform an intact extraction the partial birth procedure the vast majority of times the doctor wanting to do that procedure cannot succeed so it's a hard thing to do  precisely because the fetal tissue is not well formed there is no reason on this one there's no reason to think that a doctor trying to  so you start out intending to commit a crime but if you do what is likely to happen you won't commit a crime that's right but more fundamentally trying hard if you start by accident somehow the doctor manages unintentionally to pass the specified anatomical point that situation is carved out by the specific intent requirements built into  he can do the more difficult process of trying to extract it intact is there any reason for a doctor other than for medical thirty feet to to do the intact version because he believes it may not be safe but because of his medical judgment that it is safe there are safety arguments on both sides the one thing we know i'm not asking which is correct right i think there are safety  record that would indicate and other than a health or safety reasons to do an intact right to make that judgment there are health and safety reasons for the statute there are also ethical reasons and i understand that but i'm just following up on judge reiners question that that and that i didn't see anything in the record that would indicate that physicians perform an intact version other than for their other other than because they believe that it's best for the health or safety  now i think there are there are is the difference of judgment there is there are differences of opinion with respect to comparative safety measured against a baseline right of a procedure with a twenty year track record  did not involve a federal statute or congressional findings and so to say that there is a per se rule in a way that would preclude other district court judges or other state legislatures from reaching different factual judgments producing strange anomalies in the laws as judge easterbrook explained in the hope clinic case all of that set of concerns do not apply where there is a uniform federal statute the national legislature has resolved back question it's the courts review that that resolution for substantial evidence if the courts disagree on whether or not there is substantial evidence for the congressional judgment there's a circus why don't count and the supreme court resolves that issue on a uniform national basis one quick question on the on the fact finding before you sit down if you don't mind  congress made the determination in passing this that this procedure was never necessary it also provided a life exception how can you reconcile those two th exception necessary given my congressional findings with respect to health i don't think that the fact that a statute of for more protection than it would be constitutionally i'd like to first address to the undue burden issues in this case but actually before i do i would ask that as judge hamilton addressed all of plaintiff's constitutional claims even though she technically did not have to reach them or because she found the law unconstitutional on each of them we too would ask that the court address each of our claims just because this this may in fact be the case that goes to the supreme court and i think it would be helpful for the supreme court to have ban on so called partial birth abortion people may believe that this is a law that only applies very late in pregnancies but in fact what the testimony was is that this is a law that applies throughout the second trimester there's obviously no just station agent limit parenthood only does abortions prior to viability so we're not talking about post five deliberations we're talking about the viability abortions and by that you mean we're not there is no question here at all of any abortion you know which if you just were committed  were actually performed in the abortion service at one of his hospitals and he had no objection to that because he understands that you know he personally would not choose to do in fact he's been here actually personally doesn't do any of course because he personally is opposed to them but he understood burden and that's something that obviously the weight of the physicians and their training had to some extent would play into whether or not it is substantial medical authority but with respect to the entry burden question your honor in all honesty how physicians do abortions does plaintiffs all do do you nice in the way that would violate the terms of the statute and that's the finding again that this court needs to be deferential towards especially since there was no conflicting evidence submitted sides agreed that when a doctor begins a d n d they don't know if it's going to result in an intact extraction or not until the until the procedures over and dr west have to teach is that columbia said it's not until the procedures over best way to do a d n a abortion is to try to reduce the amount of instrumentation and to uterus which means removing the fetus as intact as possible so the government tries to say that the intention requirement in this law achieve the impact extraction even though as this court acknowledged that often they won't succeed but the other thing that's important here is this is a felony statute again these are doctors at the height of their profession at leading medical institutions in this country if this law is that held on the grounds that d n a is aren't really covered which of these doctors is going to put his life his career on the line in the hope that down the road some jury is going to say oh well he didn't really intend that there is a significant chilling effect to this law the way it's currently drafted  in addition as as your honour's recognized there's also plaintiffs have also claimed that the law is unconstitutional a fake i won't go into that in detail but i did want to mention that in addition to some of the other reasons that we have suggested in our brief related to the vagueness of the statute is the fact that this mar only prohibits intact in use or so called partial birth abortions that are in or affecting interstate or foreign commerce so even if a doctor could be certain substantial medical authorities to courting the idea that banning intact of any would endanger women there must be a health exception i think that in order for the court to find that a health exception is not needed the government would have to come forward and show the court that something different had occurred since stemberg was decided that would that would make that the stenberg rule in applicable here and it's not to be stemberg still is still the law this was none of the government's cases in which they talk about congressional deference occurred against the backdrop of a recently decided supreme court decision that's diametrically opposed to the congressional findings congress type of court no new evidence that the stenberg court didn't haven't yet reached the dip in the opposite result and i don't think it's because it wasn't that they had a different quality of evidence it wasn't a new study had been enacted or per think not and here there are several reasons why that is first the rule that the constitutional rule established in stenberg is that where there is where there is substantial medical authority on one side of the question even if even if there's other doctors with a different view you err on the side of protecting the individual woman's health if there is disagreement if you err on the side of the woman now in turn or that the court reached  said the burden of the possibility that congress is wrong should not be on the disabled minor that's exactly the that's exactly the situation here in addition and one of their other cases the lambert case the case about banning doctors from for scribing with just no use from alcohol there even though it was only a minor fraction of doctors that said that alcohol had medicinal use congress still imagine an exception to the law that allows doctors to prescribe alcohol in small quantities on a certain number of occasions again recognizing that if somebody is going to be wrong with there's clinical disagreement among doctors if somebody is going to be wrong it's shouldn't be the individual person in a where congress is reviewing vast amounts of imperial data and making a legislative judgment the context of a broad regulatory scheme none of those situations are present here it's not a predictive judgment there's not just amounts of data in fact is the fact is there's no data it's just a matter of doctors judgment the this is not part of a broad regulatory scheme in fact it's an absolutely unprecedented attempts by congress to regulate how doctors perform medicine and it's obviously not an area in which congress has expertise but of course you're honest right if i and we as i said earlier we would ask that the court go to the next step which is what if turner does apply here we don't think it does but what if it does well turner says you only deference to legislative findings that are reasonable and supported by substantial evidence but that we simply don't have that situation here because the just a court went in detail through each of the congressional findings and showed point by point how each of the findings was simply unsupported either by the record in congress or by the testimony that was presented to her i'm not going to go through each of the findings but i think two of them are important to look at really interest in light of the fact that the relevant legal test is whether there's that stand still medical authority not absolute proof that the only directly relevant finding is the first finding which is where congress says that there's a moral medical and ethical consensus that so called partial birth abortion should be banned really that's the only one relevant because if there truly were a consensus that this so called procedure would be banned then it would fail  thomas called calling black white or for our freedom slavery you know every major medical organization in this country either opposed this ban or took no position on this fan and light of that for congress to say th testimony he said i take no pleasure in performing intact extraction business persons disarticulation the only reason i do this is that it's my best judgment that it's safest for my patients and in fact if there is recognized ensuring his cross examination we were talking about the fact that this is a law that only a part applies if the fetus is living so if that's true if there was if the portion is being done because there w that performing intact any was risky to a woman frankly they should have banter of whether the fetus was living or not living because it would still be risky to the woman and in cross examination with dr cookie agreed that that was true and he and he said  to avoid that we took the law because there was no legal protection and she ended up with a significant complication again when doctors can't do what they think it's safe that's women's health is going  with respect to the scope of the turner line of question of cases the rationale expressed by the supreme court and turner is that congress is due respect as a co equal branch of government in everybody agrees that something is never necessary and there is all kinds of facts before congress in every in the record in the court and i would insist i mean supreme court decisions that opposite what what do we do we review the congressional finding on necessity for substantial evidence and everybody agrees it's never serious and you're confronted with the record here are well established people who say well i don't think you need to affirm to go so far as to affirm the congressional finding with respect to consensus because congress made a narrower finding that in its view this procedure is never necessary and less sa that we could assume those two things and then how do we do you would you would have to ask yourself whether congress is just judgment that the procedure is never necessary is itself supported by substantial evidence and the best confirmation of substantial evidence in this record is the district court own statement which we agree with that the highly credentialed qualified experts who make these judgments disagree are you saying that even if there is uncertainty that's the supreme court's formulation subject to substantial evidence review but on the on the hypothetical you posit with substantial evidence on both sides by definition there is sufficient support for the congressional judgment that's the way for instance to try hard if you were reviewing agency fact finding under a substantial evidence standard and there were a lot of evidence matter that rightly or wrongly as a matter of commerce clause jurisprudence that when congress imposes restrictions on activity that is not commercial like private violence or gun possession in the the cases you probably have in mind as opposed to activity that is commercial like selling a commodity like wheat or marijuana in a different line of cases when you're in the world of noncommercial activity the supreme court's governing legal rule is that you can't aggregate interest state impacts along the lines of what we've heard i don't mean to put words in your mouth what do i think your answer is going is that you're telling me that the supreme court gives gives less deference when we're talking about a particular area here defined as noncommercial activity that may or may not affect commerce no i'm not quite saying that i'm saying that the congressional  findings at issue in a case like morrison were simply not germane to the relevant legal standard because the court had said as a matter of law that a weaker type aggregation is not permissible with respect to statutes that address noncommercial activity i think is what i just said sorry if i missed her but you're saying the rule what i'm saying is the court is saying we're not going to be her when it's a non commercial activity congress might have made these findings that their impact on interstate commerce but it was a noncommercial activity we've got an almost per se rule that we don't defer now in another area for example abortion do they differ in another area for example free speech or must carry rules do they defer i think you're telling me in answer to my question on morrison a little bit as well you know that's different there are different levels of difference depending on the subject area being  depending on the subject matter i think we're back where we started with you from the i guess one question now that we're on interstate commerce how how can a physician who practices charity care at a san francisco hospital for the county determine whether or not his activities impact interstate commerce i think that it's a non commercial transaction intrastate first of  all i will answer the question but i'd just like to know the reason that there has been no commerce clause no i understand that claim and it's not it doesn't go to article three jurisdiction so we would obviously be in a better position to have answers had despite being raised vagueness i think the answer to your question is that the line of commerce clause attack you're suggesting is like the line of commerce almost exclusively now an interested activity that my question was really directed to their argument on vagueness that how is a physician who performs charity care in san francisco hospital supposed to know whether he or she is violating the statute because the alimony is interstate commerce is that the position of the government that every every no matter where it occurs no matter what the impact on interstate commerce then in fact any time a physician performs this procedure it's a felony i'm not sure i'm in a position to have a final position on a claim that wasn't raised but i think the point i was trying to make about race commercial then aggregation all a wickard is permissible and a particular instance of charity care like the doctor in your hypothetical or like  the charity cannabis club being right can't be separated out on the ground if that individual provider chooses to provide the service for free i understand a lot of my only question is how  answer my answer is yes and the only reason i have an element of hesitation is that it is a challenge that was never asserted against us yes i'm only reason you're here is the things you're not sure and i cannot