plaintiff his challenge provisions of the final rule that the supreme court held under statutory authority that has not changed the two subsequently statutes that plaintiffs say appended the to you know they're not arguing about the agency's authority they're arguing about the legality or illegality what agency has exercised its authority to do do you understand that yes your honor the challenge before the court is whether the final rule is program and so the authority of the agency to adopt materially similar restrictions is precisely what's before the court the two provisions plaintiffs point to the non directive counseling of the appropriations writer and the provision of the affordable care act do not alter at the agency's authority to write this letter right because this case is not about the agencies already it's about whether it has exercised its already in an illegal manner and that's why it's so important that informal care act in the directive came after rust yes related to a title ten patients pregnancy referral it's an abortion and option related to pregnancy it is legal yes your honor it is an option and a title ten grantees are permitted to discuss that with their client under the final rule how are they permitted to discuss that with the final rule or miss a title ten grantee to engage in non directive pregnancy counseling including counseling about abortion what it prohibits i for a title ten grantee to refer a eight title ten patient for abortion as a method of family planning but it permits referrals in the cases of medical necessity if it doesn't it also doesn't allow and the referral list does not include physicians that perform abortions is that correct no you're on or at least it doesn't it doesn't position patient relationship it's not because the rule prohibits referrals for abortion as a method of family planning the the rule then permit say a provider to provide information about prenatal she congress has referred to to referrals and counseling as the agency has in a distinct way to the extent that there are that it has referred to both at the same time we think that's because congress acknowledges these are two separate activities i'd point your honor to in particular the legislative attempts to overturn the agency's authority acknowledge and rust and they are in the the legislative proposals that would have overturned that authority congress referred to counseling and referrals so what does congress mean once a secretary shall make grants to adoption organizations this is in a separate section for the purpose of providing adoption information referrals to pregnant women on equal basis with all other courses of action included in on direct counseling as that sounds like information and pearls is included within non directed counseling as we explained in our brief we think that that can do that is read to mean that referrals and information can be given at the same time as pregnancy counseling but that certainly doesn't overturn abortion counseling or referrals is describing what abortion is related to not what counseling and referrals relates to be included clause refers to forces described in practice as the agency has been to treat non directive pregnancy counseling and referrals as distinct activities and that was true even under the two thousand regulations i would choose the preamble to the two thousand regulations where it's very clear that referral for abortion and abortion information and counseling are dealt with under two separate sections the non directive counseling provision is discussed in the context of counseling  to perform abortions know your honor then how is that providing the patient full disclosure of all relevant information your honor the you're speaking of and the list refers to if you'll pardon the verb is the referral list is directed toward the the rules requirement that any to presents as pregnant at a title ten when it that is not able to provide care for a pregnant client is referred to an appropriate provider for evaluation of any medical needs ar ising from pregnancy at the list the patient is given yes that patient doesn't know which doctor could provide an abortion if that's what she wanted because the point of the list is to refer  to like go down the list and call everybody and figure out even if she's expressed that an abortion is what she chooses to do yes your honor if she chooses to undertake  the title ten program that is information that she'll have to seek outside of the toilet and program congress has required that the limitation on the title ten program is that funds not be used care not non directed who are one option over another it's a very good question you're honoring there are several reasons that st and foremost that that referrals are not just simply not contemplated by non directed  counseling which applies only to counseling but a referral for prenatal care for a patient who presents a condition can be treated in the title ten contact it's not a pregnancy clinic it is a pre pregnancy  family planning clinic the agency has directed providers to provide a referral for care for the patient while she has pregnant outside of the program and that does not direct any decision about her pregnancy and it's not as a part of pregnancy counts provided under the title ten program it's simply as if a person who presents at a title ten clinic and needs and ok you're pregnant hears you refer that's your option or here's a list of referrals and we're not going to tell you which one which of these doctors may provide an abortion if that's your choice your honor that's and it's almost a full comprehensive that counseling of the patient that's interference with the physician patient relationship no your honor produces where you said she's got a cold this list i guess and figure out who might perform an abortion probably not going to ask them on the phone so she'd have to make an appointment she probably get one that doesn't odds are because majority on that list don't then she's got to run through all that try to go to the next one time is of the essence as well that maybe and that is and the supreme court addressed that issue in the broadcast that because of the limit interference with the relationship between the doctor and patient and the court found it didn't that title ten simply imposes limits on what congress chooses to find and what it hasn't list we're talking about nothing in the final rule requires this list of you know abortion providers or non abortion providers that's merely permissive so if the city of baltimore wishes to provide that list they may but abortion as section one thousand and eight has been interpreted by the agency and held by the supreme court if there's any concern by the provider that that that the provision of a prenatal referral is confusing or question about whether it's misleading and there are what answer the st answer is that the provider can make sure that it's not misleading we do not provide abortion as a method of family planning i'm not giving i cannot give you an abortion referral i'm not saying confuse confusion at that point they talk about the pros and cons of all available options if the patient doesn't bring up abortion your honor the title ten program and the definitions of the rule use the option of abortion your honor it would depend on the you know the type of questions from the patient and the information that the current so you're saying they're not  oh absolutely not and i want to make that abundantly clear that the non directive counseling and date is fully consistent with the pregnancy counseling that is authorized by the rule that pregnancy counseling can include a discussion of abortion where it is appropriate and that's up to the the title ten provider so the city of baltimore they are the ones that made the decision about what to include in pregnancy counseling jess's not dictating what the city of baltimore does with respect to discussing the pros and cons of abortion that's up to the city abel's long it is non direct so it cannot it can discuss factually neutral information the pros medical need and in the cases of incest and rape it permits referrals for prenatal counseling to deal with medical conditions associated with pregnancy regardless of whether the patient later seeks an abortion and you please the court ben flowers on behalf of the states i st want to thank court for allowing me to meet the state's five minutes today to discuss our interest there are two interest that i think highlight the legislative bargain that led to title ten and also show that the rules are going to work in practice i'll start with the legislative bargain the the many state laws that we highlight in our brief show that our citizens have a profound concern with any public funding going towards abortion that's pro life and pro choice citizens alike and because of that the states have the same interest several laws reflect the very same interest in title ten was passed in one thousand nine hundred and seventy abortion was still legal in some states elsewhere would've been a controversial practice and so in order to get the bill passed congressman dingell one of the principle sponsors proposed an amendment to stay ten away that amendment says i no talent and funding will go to programs were abortion is a method of family planning and congressman dingell expressed we said this was desire graham encouraging or promoting abortion in any way that interest remains today you see it in our laws and it remains it is rain throughout the period in the program that shows two things st there's not going to be coverage gaps while some may drop out others will be able to provide the services and indeed if there are coverage gaps the states can fill those gaps ohio for example will see is seeking more granting  any gaps that may be left and parenthood stops providing well planned parenthood has stopped receiving title x funding in a number of places in order to weigh what it provide the family planning services you know the wise get  that's right and all this information ohio yes but with respect to the ethics i think what this also shows and particularly with respect to the private sub is that they don't see the ethical conflict between the  rules and the provision of services that you meet you on the other side and the parties on the other side warn about they like in the red brief they like in these regulations is something you'd see in the rd reich schwab respect that's ridiculous when you it's what you see in ohio your apartment of health  counseling provision and its relationship with michael the doctor patient relationship that is the relationship full disclosure and mutual trust between doctors and their patients is one of the most important relationships in a person's life and that is why congress has repeatedly barred h h s from manipulating the information that doctors provide to patien during pregnancy counseling in the title ten program counsel does go ahead so you sort of start there and so i was going come back to it but i'll i'll start as well the full disclosure  which is part of the noninterference mandate as you describe it and you indicate that any limitations on the doctors ability to convey information to the patient that's an interference and that's what violates the standard and that the sort of b t r help me understand why the requirement that pregnancy counseling be non directed doesn't similarly violate that under your reading similarly violate the full disclosure because we think of a doctor who is unable to provide a suggestion or opinion or advice have you want to describe non directive with respect to the chosen option of three or more options that are available that that's a limitation on disclosure the disclosure being the doctor's opinion about whether they should or should not have an abortion your honor the answer is that the noninterference mandate is a negative prohibition on government interference so it says that the government may not interfere with communications between patients regarding the whole range of treatment options and so when the non directive mandate then says that all pregnancy counseling shall be non directed it actually imports in medical terms of counseling is not a is not a word that is thrown around a lot in the general lexicon because it's a medical term of art it's a technical term and it refers to a type of counseling that happens between patients and providers specifically as h h s said in the rules preamble non directive counseling is the meaningful presentation of options but when al suggesting the doctor's opinion that's that well it's oh i think probably a little more complicated than that but yes basically i mean if i'm wrong tell me i'm wrong but it doesn't permit the expression of an opinion or advice  abortion absolutely adoption care that i mean that's what the doctor can't do yes and so that non directive aspect of that is a limitation on the full disclosure by a doctor to his patients the doctor can't disclose i think you should have an abortion i think you should have given the child up for adoption that limitation in some sense is a limitation either doctors need to comply with the non directive mandate and thereby provide pregnancy counselling on a neutral basis to understand that but i'm guessing about consider the alternative i want to know from your position where the you agree that the final rule says non directive counseling may take place is the limitation on counseling to be non directed that's a rule issued by h h s does that in your view mandating that a particular option be emphasized during pregnancy counseling in the title temporary so is it in a position that discounts and shall be non directive not a position that the city of baltimore th can choose because h h s can't mandate it but the city of baltimore can choose to advocate for abortion for every patient that's the government has actually said that that's your position no your honor right because you're limited by non directive you're counseling can only be non direct right your honor we are bound by the regulations that are made by h h s and h h s has said that all pregnancy counseling shall be on direct physicians to emphasize one option of or not but your are your talking with the flip side which is could it then ban physicians from giving their best advice about what they think the proper option would be now we think that that independently would violate medical ethics  any number of other separate issues you think you're a doctor in baltimore based on their opinion and as part of non directive counseling it ah i see a patient th should get an abortion no your honor what we are what we are saying is that the non directed mandy requires that all pregnancy counseling be non directed which is a medical term of art that means that you get permits and a meaningful set of options to patient and your i mean your are your question is about whether the noninterference mandate which says that that h h s may not promulgate any regulation that interferes with full communications between patients and providers might conflict with that mandate but even if they conflicted because both operate to prohibit h h s that would mean that either it violates worn or it violates the other even the noninterference mandate has been violated because neutral and that it must be unbiased and specifically in reference to abortion saying that there should be no sort of tacit pushing toward but i believe that that is a definition that applies to both sides the idea is that non directive counseling doesn't emphasize one option or another doesn't tacitly put a thumb on the scale toward a referral for prenatal care for all for adoption or referral for abortion rights coun a referral is made at the culmination of accountants were options are present in the patient says that option isn't for me that option is the option i would like to select and so any requirement that then required the medical provider to present a referral for everything when in fact the patient has selected a single option and said that's the option i would like to pursue that's directed that both even reach the trust that the patient has in the doctor because the doctor is not putting their best interests st which is the purpose of the doctor patient relationship so if you make a referral for five things that are not relevant to what i've selected you're telling me that my interests are your  thing strikes me is interfering with a doctor patient relationship none of us well maybe somebody at one of those tables is a doctor but there's a bunch of lawyers sitting around talking about what's best in method that they consider a legal obligations under fifty four they submitted in the in the administrative record that they had considered the affordable care act in formulating the rule more importantly they didn't say well not the hypothetical right you get one of the other either you avoid waiver by saying it was considered a new void waiver but if you do that then you've got to say that it was considered and now they get chevron deference but they cannot survive the statutes as the principles of informed consent and the ethical standards medical professionals that's not congress's judgment that's not justice judgement that is intended to import the widely accepted ethical standards of the medical profession which were put before the agency and the agency did consider although not in the context of the five thousand and fifty or mandate but the a m a a cog a p every leading nonpartisan medical association put comments before the and the arbitron caprices challenge is not before the court but it said it it said it in a conclusory manner and said well rust held title one thousand and eight as ambiguous and said it was a permissible interpretation and then they say and it never would have done association and a colleague whose guidance they have imported in their quality family planning guidelines that they have not that they did not explicitly say that they were ignoring in the rules so they just don't even discuss the fact that they have controlling guidance  the opposite of what the rule provide this might be a better question for your colleague but i'll ask you so you know the a b a he just because i know more about lawyers than doctors right if the a b a issues and ethical guidelines that says you know a judge for example needs to do a certain thing that's not binding on me right it's sort of an industry group and it's persuasive or not persuasive may dip in state by state some states adopt it some states don't stated opposite in that matter but the a b a s suggestion of what someone's outgo obligations are are interesting but in no way sort of controlling of the question in that the same thing for the a m a and you keep calling them a cock i'm not sure that is the american college of obstetricians and  and apply that in determining whether or not i understand your argument i try to make sure i'm i'm understanding because you could imagine that i could something more than that but there are sort of provisions are similar to the a b a a in that they are highly persuasive really interesting but not strictly speaking binding on any given doctor yes i would say that that is correct there are doctors who apply a wide range of ethical views but they are the consensus position of the on and i do want to i do want to just return to the fact that this at this requirements in the rule are directive counseling in any in any way that you slice counseling always been treated differently and they pointed to they said even then that three regulation in the preamble and i wanted to hear your thoughts on yes your honor we believe that counseling encompasses counseling about  further care which was also known as a congress has repeatedly paired counseling and referrals in many statutes but we know that there that the only other place the counseling appears in the united states code they say included in other courses of action included in repeatedly paired they were they say and they are they always treat them as actually unit but their hair right so it's like counseling and referral upon request so they're often treated as sort of a single strongly favors baltimore and this hasn't really been fully developed in the briefing in the side sort of back which is because there isn't always a chance develop it but congress repeatedly repeatedly try to enact and a a wall that we think that that is strong evidence that the the limitation the non directed mandate is the culmination of that legislative agenda under the under the rider a doctor at one of your facilities are they permitted to give their advice to a patient that abortion is the appropriate course of action  you mean under the new rule under the not under the well i was talking about the rider but it's the same thing i think under the rule i don't it's there's a distinction there tell me but there can be a there and i don't want to speak out of turn but i there can be a situation where a doctor would say among your options because you will otherwise you will otherwise die for instance of the health exception all right so i guess that would come with it but it would also be within the statute story meaning right because that's and that's a regulatory exception so it would be if it means that but other why so i said that when we also take rape incest and put those in a bucket so i understand those three health rape incest maybe there's another one but i get it right my question is the sort of more generic case patient comes in non directive counseling doctor talks about all the options at the end and they permitted to say i want to give you the advice that the appropriate course of action for you haven't talked to you in my medical and they said no they said no that would be inconsistent with the non directed mandate and they also said that totally omitting information about an option would be inconsistent with the mandate  so to the degree the government's argument the government conceded in california versus azhar in the district court that if referral is a part then the rule violates the non direct mand is also an irreparable harm that interest in common to all title temperatures but is is a serious an irreparable harm but yes that patients would come from outside the jurisdiction in common and use and that baltimore could never recapture that patient trust that would be lost if patients began to believe that their doctors didn't put their interests st so that was the reason you respond maybe i'm mistaken here but the state of maryland salt relief under this rule in a different actually you know you talk about those seem a little inconsistent right the state of maryland tries to get that injunction is denied in a different circuit and then you come in and you say yes we the i think that that baltimore's decision to pursue its own relief ultimately proved pression the th circuit stayed all maryland's relief we think incorrectly and we have no power to influence maryland's decisions in fact maryland has in voluntarily with like maryland has withdrawn from the title ten program they did so a few days ago when they did so we as there's some grantee were also in voluntarily taken out of the title ten program baltimore has been struggling to stay in the title temper graham hoping to see the rule vacated return of the two thousand regulations but because baltimore was unsuccessful in procuring an injunction and marilyn was unsuccessful preparing an i didn't realize all this that happened and that created just disability problem for us no it does not in your honor baltimore are still harmed by the exam by the rules all to more still would like to be a granted in the ten directed counseling st interim was introduced and it is a phrase that has meaning as a matter of medical ethics and that meaning is not consistent with the notion that there is non directive counseling but  refer that is an oxy moron your honor non directed counseling results in a referral for the services that are requested by the patient as a consequence of the complete and unbiased information that the patient is provided and then supply each of those statutory and regulatory references to non directive counseling paired with referral all specified that else it is in all of the documents that congress would have had before it when they used the phrase non directive counseling non directive counseling and referral upon request is what all of those documents refer to and the upon request is what clarify does this mean that is the government hypothesizes that counseling and referral are just two totally different things what it means is that the referral that is to is the culmination of the counseling is that the referral for the services would quested by the patient that's what non directed means when it's not undirected counseling you're giving all of the options all of the information the patient makes a determination about what course of action they want to follow and the referral tracks the patient's request so all of those references to non directive counseling are paired with referral upon request or as she requests highlight that the referral comes out of the patient it's program does this program out a different see in the title ten program anymore so does that affect the sort of referral on her last concert here i agree your honor that is necessarily part of the counseling that's being provided because in a certain point it's your honor says that it stops the services that can be provided under the program stuff and am a code of ethics it's a fundamental premise of medical ethics that that doctors must make a transition of care where their own care must stop and that can be for a number of reasons doctor patient relationship broke down a matter of conscience on the part of the doctor but where the care is going to end the doctor has an ethical obligation to make the transition to a new service provider and medical ethics would preclude the doctor from making a referral to somebody who could not provide the relevant medical services which are the ones that the patient has requested and if so patient as the patient is pregnant so has to be referred out of the program as she's pregnant for continuation of care say for the next twenty four hours or the next week or  which she need to be referred to a doctor who takes care of people she would not well with the regulation requires is referral to prenatal care and that is not medically appropriate for a woman who has already made the determination to terminate the pregnancy prenatal care is not medically indicated and so to make a referral for an unnecessary service would be inconsistent with medical ethics and i can ask a separate question  law and you're understand you're not a doctor but you're sort of playing one here so is there a scenario to the extent you know where a in a totally hypothetical where a woman decides to get an abortion but it's going to be some time it can happen instantaneously that that woman because of preexisting health conditions requires care and so i think about like a pregnant woman who has like auto immune  disease where the pregnancy can actually not just in danger the life you know the the child but the mother or the pregnant woman herself by virtue of the fact that she is going to remain pregnant for some period of time is that would that be a scenario where you would say that you need because of preexisting conditions of the woman that she needs to be sent for prenatal care to ensure her own health at least until an abortion t delay in terminating the pregnancy there is some other care that the patient needs in the meantime and yes medical ethics would call on the doctor to refer her to that care that is appropriate for her in the intervening cares for the fetus not the mother so like all the things that they do for a pregnant woman under prenatal care that's not limited to taking care of the child and they're also trying to take care of the pregnant woman and i think that what the doctor's called to do as a matter of medical ethics is to refer her to the care that is appropriate to her in that circumstance which is not care for the fetus because of her determination that she is going to terminate is that information and referrals must be provided on an equal basis and so what congress is reflecting in that statute is a recognition that information and referrals are part of the counseling that because of the nine directive mandate must be provided on an equal basis to patients that means taking the direction from the patient that is inconsistent with a regula yes your honor just a few quick points at this stage the overwhelming majority of title ten providers have remained in the program despite the enforcement of the rules so if it were true that medical ethics prohibited them from complying with the rules requirements all of the providers would not be able to remain in the program and i think that maybe they want to declining to provide an abortion referral i think we would see a different outcome at this at this point your honor to the extent that your honor judge richardson is correct that the purpose of the prenatal referral is for care for that he shouldn't while she is pregnant regardless of any decision subsequent decisions about the pregnancy and the provider can make that clear and giving you a prenatal referral requirement for your own health while you remain pregnant i'm not making any suggestions about your ultimate decision as part of the disclaimers that the rule commits permits and again up to the individual doctor to ensure that it is ultimately non directed all to more or any provider that participates in the title ten program is concerned  about the prenatal referral requirement being confused being confusing and it can make that clear  there are no further questions your honor