happily asking to be excused from an otherwise generally applicable requirement simply because they provide abortions specifically they want to be excused from a law requiring them to have transfer agreements which are important safety measure that even the national abortion federation recommends and which this court found to be constitutional in women's medical professional corporation be beared even though this court has already uphill the constitutionality of walls requiring transfer agreements and baird the district court declared kentucky's law unconstitutional and permanently enjoined it's unfortunate there are a number of reasons why the district court's judgment should be reversed but don't plan to focus on two years a year honors st the district court incorrectly applied to burton standard and nd the district  old regulations which basically just parroted the statute those have been repealed and replaced by some new regulations correct so those old regulations are no longer in effect that's so that means that there there's the possibility of getting transfer agreements or the possibility of a good faith attempt to get transfer agreements plus some alternative health measures is that right it's pretty there any other kind of provision kentucky law that requires a business to operate under a ninety day license extension like this one well not that i'm aware of your honor but that doesn't apply like there aren't sort of these ninety day license extension options for if you have other kinds of medical facilities there are restaurants there are well there are provisional licensing options to become provisionally licensed while you're attempting to get into full compliance for licensure but what's what's important to point out is this new regulation actually gives more lenient treatment to abortion facilities than to other similarly situated facilities where outpatient surgical procedures are performed  under nine hundred k r five which we cite in our briefs ambulatory surgical centers are also required to have transfer agreements and if they can't get transferred remits they don't get to take advantage of this ninety day opportunity only abortion facilities have that leniency in kentucky so they're already treated more leniently than similarly situated facilities but they want even every so every surgical center in the state of any type has to have a transfer agreement that's correct you are in your there are four places in kentucky where you can have an abortion hospital's ambulatory surgical centers abortion facilities and doctor's offices this regulation only affects one out of those four ambulatory surgical centers also have to have transfer agreements or there are the requirements that would apply to i think you r your mentioning one the ninety day but are there other requirements that apply only to that don't apply to searches centers where abortions performed but do apply to other surgical centers well ambulatory surgical centers in kentucky have a much higher burden for licensure because they have to go through the certificate of need process as well kentucky is one of the minority of states that still has a certificate of need process and the certificate of need process is a rigorous process that abortion facilities don't have to go through they just have to meet the requirements for licensure  surgical centers must go through certificate of need process and meet the requirements for life one a problem one of the the whole women's health and supreme court faulted texas because they held the abortion facilities to the same standard bases all surgical centers are part of them to register an exact same way that's not the transfer agreements in kentucky and you know if the commonwealth just wanted to shut down abortion clinics we would say well too bad you didn't get transfer agreement you're done but this is not about shutting down abortion clinics this is about women's safety and health and as a result of that the com will said look as long as you are continuing to make good faith efforts to get transfer agreements and you can demonstrate to us every ninety days that you have sufficient alternative safety measure none of this is about women's health when all the complications in every abortion or even a a majority of abortions but i wouldn't necessarily describe them a safe there are there are borson complications that are very serious there was dr richard hamilton it was evidence and the judge made findings so i guess the operative question is how was the evidence on this point defective and what constitutes the makes the the findings improper i mean you could you could talk about the issue that we want the hell we want safety and appropriate treatment for women which goes without saying just review questions of fact for clear error this court treats them like legal issues this court held in void in women's medical professional court be born to bitch and women's medical professional porky taft that while we normally review questions of fact are clear error an appellate court is to conduct an independent review of the record when constitutional facts are at stake so this court is to take an independent review of the record but even so the evidence is abundant here that there are great benefits from transfer agreement benefits were bayer was before the heller state case but baird acknowledged the benefits of transfer agreement baird also held that transfer agreement requirements ensure that surgical centers can transfer patients in the event of medical complications emergency situations and for other needs as they arise in other words your argument is bared while they didn't do the ballot the burden benefit balancing required by whole women's health it's still found that there are benefits even though it didn't balance them against burdens and that that binds problem with holding well those those benefits were clearly discussed in baird and but even setting that aside their record is replete with evidence of the benefits here dr richard hamilton is the only emergency room physician who testified in this case he's a board certified emergency room physician who's chair of emergency medicine a dreadful university he's treated thousands upon thousands of transfer patients in his emergency room and he testified unequivocally the transfer agreement optimize the chance for a good outcome in emergencies based on his professional experience arthur a number of other states also have similar transfer requirements yes sir california is one of those i think i think that's right i'm not in your business or but i think that's right so i'd like to get back to the to the waiver provision so the waiver provision could operate here so we could even if we said well they can't get a transfer agreement when the district court found that they can make good faith efforts to get a transfer agreement or comply with your satisfaction that the abortion facility can provide the same level of patient care via alternate health services so what what would do we have any evidence in the record about what you would accept as evidence of alternate safety regulations we're able to decide that well you know that's a that's a good question because there's there's no evidence the record precisely because nobody tried and that's the cause ation is you know but that's the circuit pointed out in june medical the holly case from the circuit also dealt with that no one has even made any attempt here and they argue they can't because they've been enjoying well they they planned parenthood came when they've not been enjoined from making an attempt they could have tried in operation right the regulations are temporarily on hold they were subject to a temporary injunction and to your agreement that they wouldn't be don't the injunction was against the commonwealth enforcing the statute regulation against them nothing would have prevented the m w from trying to say and there's no evidence in the record we asked dr marshall for me at trial what would what would prevent you from complying with the ninety day extension of time keep him out in his deposition he said well that wouldn't be a burden but a trial magically all of sudden did become a burden there's no evidence in the record that would be a burden on anyone if we don't know how hard it is to get the extensions so in other words if you lived in the universe in which the exemptions were granted as a matter of course then obviously people would not would work there because they're just routinely granted i don't know is soon there are going to be granted as a matter of course how hard is it going to be to get that and maybe the answer is there's no evidence in this record that would tell us that so we can i think it's a causation issue i think th there's no evidence and that this goes hand in hand with the holly case from the th circuit sort of said look this really isn't justiciable because we just don't know what's been the evidence in the record on this and this was not our burden to prove causation it was in ws in planned parenthood's and they have not proven causation keep in mind that dr marshall said directly contradict himself the trial his his deposition testimony was that it wouldn't be that big a burden a trial that magically became a burden in his eyes so we just i think maybe found him credible the question is whether hi testimony while credible it's the patient to sustain the causation for i don't think it is your honor because it's all speculative no but he's speculating about what he would happen what rd parties would do his employees would do in the future and we have no idea what would happen with planned parenthood there are only testimony as well maybe we can do it that that's definitely not testimony that establishes causation and your honour's in holly the circuit essentially said maybe would be better if we just let the parties go through this course and see if it's a problem and then they can come back to court and ask about one of the issues in this case is the fact that this could be the last or maybe this is the last clinic in the state and if it's closes you know when the state has  woman the state has access to a clinic at least within the state now they're why i understand there was a clinic in lexington and that was open for some time and i think there is testimony that there is a hospital in lax and that we would be willing to enter into a transfer agreement  outside the distance under the current regulation can you tell me what happened in lexington and that's a little confusing to me from the record what happened with that facility that was was there until two thousand and sixteen i think that's correct judge what happened to lexington facility it was became licensed and the kentucky court of appeals in the kentucky supreme court unanimously ruled that that clinic had to be shut down until it was licensed to keep in mind inspection showed that clinic was operating with outdated medications it had unsanitary conditions and any kind of license ultimately they they initially started the licensure process in they just decided to terminate the process and shut down the m w clinic in the in the one of the levels also the clinics are run by the same they have the same ownership and physicians and planned parenthood also has a transfer agreement likes and they've never filed an application to be licensed as an abortion facility in my sentence but they have transferred into there and keep keep in mind also there are as i said earlier there are four places in kentucky you can get an abortion so even if this technically closes the last clinic that you can still get them in hospitals and ambulatory surgical centers in doctors offices and there's and we as dr marshall a trial going right that are performing abortions well they don't exist right now but there's no reason we have dr marshall at trial w correct your honor but i think that's more a function of the fact that they have essentially corner of the market on abortions and take it they're the only place for abortions have been performed and if they were in a way that doesn't mean abortions go away in kentucky that just means they're not being performed in this facility i mean i don't know i mean that test measures the practical impact on women and the practical impact here is essentially none because because of the unique geography of kentucky even if the shuts down the last clinic in kentucky most women in kentucky are closer to a clinic in another state while there's no evidence in the record to show that those expenses will be more than three hundred dollars and plus you know places take for instance a place close to bowling green kentucky close to the tennessee border those individuals are not going to be going to louisville anyway for treatment that's over you know clay this does not affect most women in kentucky there's only one clinic and most given given the unique geographical situation of kentucky most there's no point in kentucky that is more than one hundred and fifty miles from an abortion clinic in another state and this court held in bayard that it is not an undue burden to have to travel from dayton ohio to cleveland ohio a distance of two hundred and thirteen miles so it's not an undue burden to travel two hundred and thirteen miles there's no way that it can be an undue burden to travel one hundred and fifty miles or less to an abortion clinic it just defies what the the it done to burn test is about the practical impact i mean i'm sorry you just said there is no place in kentucky that is less than one hundred and fifty miles more than one hundred more than a one hundred and fifty miles from an abortion thirty in another state wrecked it every single point in kentucky is is no more than one hundred and fifty miles from an abortion clinic in another state almost every single point in kentucky is within one hundred and twenty five miles there are just a couple slivers that are outside somehow it's magically an undue burden to travel a much shorter distance if you just have to cross a state line and rd if the commonwealth of kentucky cannot require a safety measure that even the national abortion federation recommends defendants argument seem to presume that this case comes to this court on a blank slate that's simply not the case this court is bound by the factual findings of the district court that are not clearly erroneous they must give deference to them and of course it's bound by holmes health versus heller stead which directly controls this case the want to regulations there are far more challenging for clinics to meet in texas than this one is in kentucky other words there was a the elevated  just comply with all the standards for all surgical centers and understanding is that it's not the case for abortion clinics in kentucky there were two restrictions your honor at issue in holmes how st is the admitting privileges requirement and the nd is that a military surgical center requirement  both of them were struck down and with respect to the admitting privileges requirement there were a number of different health care providers that were not required to have admitting privileges to a local hospital but a portion providers were and this singling out of abortion providers is exactly what's happening in this case it is simply wrong to say that different health care providers must have a transfer agreements that are similar to abortion providers ambulatory surgical centers that were in place since prior to two thousand and twelve do not have to have transfer but before twenty told their grandfathered in regulation the regulation you're challenging was united after twenty two and also the regulation was promulgated in the context of discovery in this case and no other facility is subject to that emergency regulation that provides much more stringent requirements for abortion providers to have transfer agreements it dictates if you a host of states have similar transfer requirements are those all valid to well your honor the evidence in this case shows that a transfer agreement does not optimize patient safety it does not enhance patient safety in any way whether a law in a different state is constitutional or not depends upon the certain facts in terms of the benefits and burdens in that case in those in that particular state how they would how would they  transfer agreements even if they had been on the books for many years ago just recently the federal centers for medicare and medicaid considered a regulation that would repeal written transfer agreements and admitting privileges for invalid tory surgical centers finding quote the national federation has a recommendation that clinics consider entering into transfer agreements not that they recommend having them and in fact it's not part of their requirements for abortion facilities to be considered for now membership and in any event even if there is some sort of hypothetical or scant burden of benefit to having transfer agreement it cannot way the burden here holmes hall says you must take the benefits and weigh them against the bird and and the burden here is so great this is tantamount to a ban on abortion in the state of kentucky how much of this turns on the fact that this is the last clinic in the state well if i have a clinic would you make an exact same argument well it depends on whether al of those clinics would be forced to close as well and so here we have the total elimination and partially no no that's true because in their particular locality there might be there might be providers who would be willing to enter into transfer agreements right now all of at the time of the record and at the time of the record in this case there are one person clinic providing and one abortion clinic that had been providing both of which would be forced to shut down i understand that i just judge regulars question as a hypothetical question what if there were five different clinics in the state i understand that there aren't but if there were it would depend on there are circumstances in their location whether they could get transfer agreements there you would measure the benefits  well i have a question we keep talking about whether or not you can get a transfer agreement or whether there are benefits to transfer agreements but there is this exception you don't have to be able to operate you don't have to be able to have a transfer agreement where you have to be able to do is make good faith efforts to get one and show that you can provide the same level of patient care via alternative safety measures your own or do you think you can't meet that  indefinite extensions he said he can't guarantee that you would but did he say that you won't i mean he said that we certainly would not be able to rely on it indefinitely don't know what would be required i'm still puzzled i don't  the alternative health regulations are so you say we have these awesome protocols we have these great protocols therefore transfer agreements aren't necessary what if the state agreed with you do you have any evidence that they don't agree with you what if they were right your protocols are good enough well your honor if they had agreed with us they would have said so in their briefs than that and the inspector general would have testified at trial that we met that good faith that good faith effort that you have applied for a waiver no your honor but they did have the protocols in evidence they were very familiar with them they also conceded that not a single woman has been treated improperly because of the lack of a transport or transfer agreement so here we're talking about the lack of any sort of health benefits of the statute and so therefore the regulation must fall as well and in any event the ninety day extension can be revoked at any time by the inspector general and that emergency i mean if you mean swim then he would have had to have a finding that the state of kentucky operates in some arbitrary and capricious manner they just wait while today you get one today you don't there's no finding like that your honor i think it's certainly up to the discretion of the inspector general to ordinary rules of abuse for abuse of discretion and due process well your honor that there are there certainly within the text of the regulation that gives it extraordinary discretion but the other point i'd also like to make is that this isn't an example of  waivers in bayard or in holly where those were flat out weavers of the provision there is no other circumstance where any provider has been able to continue operation in ninety implements and we wouldn't do that successful for any other business imagine what about a restaurant restaurants are subject to inspections every ninety days and then if you prove to be not safe then you get a time and there's a time to cure here and there's an appeal process a ultimately if you can't if your restaurant is not in compliance they shut you down but they can still get waitstaff even though they're subject to inspection your honor and certainly within that portion facility context there is oversight and there are inspections and they're required to  regulations however with respect to the extension permission what is required in that ninety days is an attempt to get transfer agreements there is no need to extend the period of time to try to get transfer agreement because we know the answer we know that no hospital in lieu of all is going to sign a transfer agreement that meets the cabinets approval so there's no need to continue this extension of period time knowing that at some point since specter generals going to say you have to have a transfer agreement and if you don't you'll need to close in ten about the question i asked earlier about you know a lot of this case seems a turn of the fact that this is thought to be the last operating clinic in the states i'm trying to probe that with you a little bit soon there were four other clinics in the state all of which had transfer agreement this one clinic could knock out one why would be we be forced to jump through these hoops in ninety day increment for what when the when i was just talking so in that case you're saying the burden is why last woman in the state because there are other clinics it maybe it depends on the capacity of the clinics it depends on the different if there's a reason there's reasonable capacity for the other clinics well it also depends are we talking about or they are providing st and nd trimester abortions what's the distance of travel in homes health for example there are seventy clinics going to be left after the provisions two took effect down from forty and there was still an undue burden on women seeking access to abortion in texas with those seven dollars to eight dollars remaining facilities because of the lack of capacity and the increased travel time so it really just depends on  kin exposed we're in the situation we're in and the clinic has stopped paying its state or local taxes in the state wants to shut the clinic for not paying taxes will be able to do that granted that's entirely possible i mean that there's there we are not clinic that would end up closing it and you could say that the value of the benefit to the state i mean a whole host of reasons why the clinic could close and i'm one of them wondering is there any real you know is sort of the last the last clinic standing is that make it you know essentially impervious from any ability of the state or a whole host of it doesn't honor and certainly if they were operating on same conditions that would be a different story but defendants have conceded that no patient has suffered any sort of harm because of the lack of a transfer trans to try to understand what else there are other reasons they could close the clinic it's entirely possible your honor but it's impossible for me to sit here and say exactly what that what the case might be but knowing the facts of this case with the district court's findings that  and it closed why why did it close just close a couple years ago i think i think so it was required to be licensed as a person facility was a doctor's office providing fortunes and the state specifically says that doctors doctor's offices can provide abortions and interestingly doctor's offices do not have to have written transfer agreements regardless of the type of procedure that they perform when the state court decided that they needed to have an abortion facility license and started to apply for that license and eventually they gave up because every paperwork that they submitted including their transfer agreement was rejected and as dr matt marshall's under budget testimony is it's one thing to get a transfer agreement it's another thing to get one that's accepted by the cabinet and eventually there they felt like it he felt like it was fruitless and did not pursue it and there was there was a hospital in lexington that was willing to enter into transfer agreements the university of kentucky entered into a trance or a case didn't go to litigation but if it did me please the court planned parenthood much of what we've been discussing today is resolved by holmes health by the standard of review or by both so i'd like to start with the notion that a ninety day extension of time provision can somehow salvage this unconstitutional statute nd the regulation itself doesn't just require consideration of alternative health measures and good faith but also any other factor that the cabinet deems relevant so that means that not only is there no nitty gritty evidence about ju you ask what would happen as an alternative measure but any other factor can be taken into consideration and rd the critical question here the factual finding relating i'm is not about whether or not the cabinet will in fact grant one or even more than one making the waiver the critical question is the factual finding that would be exceedingly difficult to operate if you only knew you were going to be around for another ninety days and that's supported by our by the testimony from dr marshall that testimony it is true that he said that  but he said i can't if they knew they would only operate on and i do a license but without knowing how hard or how easy it would be to get that ninety day license so we have to take his testimony as assuming that you couldn't even if they were routinely granted you just couldn't operate ninety days at a time i just find that kind of incredible i don't know why that would be true if they are routinely granted which we don't have facts showing that they are or are not i just don't know i can operate ninety days at a time sure so we knew the new have to show it right certainly on it's certainly our burton and we know that there are at least not indefinite right that's the position that d erroneous to rely on that testimony would be contrary to the standard of review and i'll just note that holmes held totally unsupported speculative testimony here saying like i couldn't possibly because nobody would work here  knowing that there's a point at which their job is going and not knowing whether that's ninety days from now or one hundred and eighty dollars days from now because we know these are not indefinite extensions but like if you have a loan provision that you are operating at some point you might lose your financing it could be true deficit in capacity to two thousand three hundred and forty seven they hire more medical staff and the majority said there was not even testimony in the record from those facilities saying we can't hire more staff so they didn't even have the testimony that we have here and the majority said that's not how we do this analysis we don't need to prove one thousand percent definitively that these clinics won't be able to avoid passing along the burden to him it's enough that that's the most likely outcome and they're the majority relied solely on commonsense not on likely outcome yet planned parenthood will shut i'm sorry m w will shut down and i guess planned parenthood won't be able to enter the market although your testimony was well we wouldn't have been able to build this facility that we've already opened so i don't know how that helps planned parenthood but in any event let's focus on e m w your burden is to show not that not with evidence that they would shut down but per hope women's health that with commonsense not supported by evidence they would shut up and that's what just in holmes health there was not even testimony saying we can't hire additional doctors and yet the majority said that's not necessary because the hire that person if we are able to get a permanent license but it's impossible to make a job offer to a highly skilled professional if all you can guarantee them that kind of makes sense to me but then i feel like i need some evidence in the record that tells me something about the job market her positions or the job market for nurses or the job market i have been guessing and again in whole intel there was none of that sort of evidence that you're describing and there was not even testimony on the question of whether the existing clinics could hire more medical staff and yet the supreme court said that's not necessary here we have honored by the testimony and reviewing for clear and also just like to note and make co counsel pointed out that this is a very different situation than some of the analogies that the state has drawn in can operate indefinitely if you don't then you can come to court here even if we get the ninety day a provision the point is that it would be very very difficult to operate in those sorts of if i could turn to the question of the other facilities remaining in the state know again this is an argument i was considered and rejected by home health so again and dissent just as we don't know did not only that there may be new clinics that open or new facilities that could pick up the slack in terms of providing abortions in fact in the two years since the record it's meant that there are more of a central location for probably some women who are more financially challenged certainly your honor but again the idea is that we can snap our fingers and suddenly say we rent space in lexington and therefore we can begin providing abortion collectively certainly understand your honor and so two points to just be aware of on that front one is again and just as the university of kentucky had given us a transfer team at the university of louisville had also given us a transfer agreement and it was  very shortly after it was given and so the idea that we would raise the sum of money in lexington based on this transfer being that could be just as easily or vote is a very difficult sell for funders and that's one question about the  record with respect to emergencies or whether whether there's a true health concern here that this law and regulation trying to get there is testimony from the family you know i'm referring to the at emergency medical who are outside the facility and of those only two were hired a hospital transfer and and i can't remember is the one who sort of said these agreements are quite the silliest things i've ever seen because no one actually looks at these regulations are ones that planned parenthood could easily comply with so for example california just requires a quote detailed procedural plan and no reasonable plan shall be disapproved so there's a clear alternative you can't get the agreement you just need a detailed plan which  of like to start were left off you did not hear opposing counsel explain why the national abortion federation would recommend transfer agreements if they don't benefit patients you do not hear them explain why it is somehow magically an undue burden across a state line and you didn't hear them suggest what kentucky could do if it can't do this what you heard a lot about is that somehow they come up with kentucky is going to be arbitrary in its application of this regulation and that's just not the case you are that's wrong for at least three reasons number one the law says that you disappears at the end of ten days you have ten days and then you have an appellate process after that and then it goes to the can the secretary and then you can appeal to the kentucky judicial system there is a significant amount of due process that doesn't just disappear and we've also got a constitutional in the due process  automatic or wrote decision they have to they have to demonstrate sufficient alternative safety measures every ninety days to keep their to keep their license but to judge larson's point from earlier why not why not let them go through this process and try they haven't even tried there's no and the st is we don't know exactly because nobody's tried we don't have a record on that point but the other answer i think is you know we can look at dr richard hamilton's testimony and see what would be an alternative safety measure dr hamilton explained that really in the short run if you have working relationships with sitting and receiving facilities you can have adequate safety in the short run as long as the personnel are aware of each other and know what's going on know the transfer protocols but the gold standard is a transfer agreement where you know  no your honor just a familiarity a professional relationship where the personnel are familiar with each other familiar with the facilities and there's no reason in that no evidence in the record that couldn't happen here grounders this is about women's safety it is on that last p measures and that's it if they were to be denied on that ground there be administrative process and evidence is introduced in the administrative process to see whether there are sufficient or not this is about women's health this is about making sure that women are safe in the event of an emergency every other outpatient surgical center kentucky is required to have this women deserve the same protection in the commonwealth and your question of the point about clinics being available outside of kentucky and what's the best case you think that says that we can consider clinics that aren't in kentucky well the cold case from the th circuit which was reversed as heller stated held that you could rely on new mexico clinic's heller state did not address that point judge garzon on the th circuit has agreed with that as well just manny on the th circuit so you know there's not an abundance of case law on this other than poll supporting our position but if we're serious about the undue burden standard measuring practical impact on access to abortion we've got to take that into account here another reason we have to take that into account here is the large fraction to switch the district court didn't apply what's interesting is the m w formulates the large fraction tested formulas the denominator is the number of women seeking abortions in kentucky well that necessarily includes interstate travel because we know from the evidence in the record a lot of women who seek abortions in kentucky are from other states so if you're going to include women from other states coming to kentucky in the large fraction test you can't exclude interstate travel from other parts of the new birth analysis you can't pick and choose we're going to include interstate travel or going to exclude it and even under planned parenthood's formulation you have to take into account interstate travel it makes no sense to to if we're serious about measuring practical impact we have to actually look at practical impact and your honour's see my time is up and i would respectfully request that this record your st thank you thank you very much