>> so your point, i'm taking, is tt the two main health reasons show that this law was targeted at

abortion. >> that's absolutely correct. >> thank you, counsel. >> i'm. is there any other medical condition, like taking the pills, that are required to be done in hospital? not as a prelude to a procedure in hospital, but an independent, you know, i know there are cancer treatments by pills now. how many of those are required to be done in front of the doctor? >> none, your honor. there are no other medication requirements and no other outpatient procedures that are required by law to be performed in an asc. >> thank you, counsel. general verrilli? >> mr. chief justice and may it

please the court, the effects of the texas law in this case are much more extreme than those of any abortion law this court has considered since casey. it closes most abortion facilities in the state and exponentially increases the obstacles of women seeking abortions in the state on the basises of a medical justification that cannot withstand any meaningful scrutiny that the american medical association has told you is groundless and that the district court found will actually operate in practice to increase health risks to women -- >> is this true of every provision of the asc law? >> no, i don't think it is true about every provision in the regulations, justice alito. >> not the regulations -- yes, the regulations. every single provision. then why was the whole thing held to be unconstitutional? >> so i agree with the premise of your honor's question. there are some parts of the regulation that i think,

operating alone, wouldn't have the substantial effect. in fact, some parts of the regulation actually restate and reauthorize regulations that were already on the bookings. so i suppose one could say that with respect to that set of regulations that the district court could have severed them under the severability clause, one could say that. >> but there are things that go -- i haven't checked everything, compared the prior abortion clinic licensing law against the asc requirements, but somewhere it seems pretty reasonable under the old law it had to be a nurse but not necessarily a registered nurse. under the new law, there has to be a registered nurse who has a cpr certificate. so do you think that's unreasonable, that there has to be a registered nurse who knows how to do cpr? >> so i don't want to state an opinion one way or the other,

but i think getting to the point of your honor's question, i think the problem the district court confronted here and the reason they acted reasonably is that the severability clause provides an instruction that every provision, every clause, every word, every application of every individual should be severed, and the problem is the problem of the kind that the court noted. the court's got to go in and decide which collection of the many, many requirements there ought to stand and which shouldn't. and it's going to be -- >> well, it's -- [inaudible] maybe the district court should have done that work. i read through this, and i was surprised by how many are completely innocuous. and many of them have to do with basic safety, not anything to do particularly with abortion. the entrances have to be at grade level, you have to have an elevator, the corridors have to

be wide enough so that you could bring in a stretcher if somebody has to be taken to the hospital. and things of that nature. i don't know why things couldn't have been severed out so there were some that -- >> i think that some could have, and if the court believes that remand is appropriate to be more carefully tailored the way it was in the ayotte case, we do think this remains to be an obstacle, and i would like to address two points, first closures and then capacity. with respect to closures, here's what i think the record will show you. taking the asc argument first, there's a stipulation that all clinics that weren't already closed as a result of the -- [inaudible] requirement would not be able to meet the asc requirements and, therefore, would have to cease operations. justice kagan noted they did cease operation. there's evidence in the record with respect to the seven

clinics that are operated by whole woman's health that it was physically impossible to meet the asc construction requirements because they couldn't meet them. there's expert record in the testimony from the economist that the cost of retrofitting these clinics would be between $1.6 and $2.3 million which would be prohibitive and that the additional operating cost of an asc would be between $600,000 and $3 million a year more. so with respect to, with respect to the admitting privilegeses requirement, we know that 11 of the 20 clinics that closed between the effective date of the requirement closed on the date that that requirement became effective. seems to me the only reasonable inference you can draw is that the law caused the closure. with respect to the others, i don't think there's evidence with respect to each one, but

with several there's evidence that they closed in advance because they were otherwise going to have to pay a licensing fee to stay open for another year which they knew they weren't going to be able to stay open, and they didn't want to flush the money away. with respect to capacity, i do think this is the locus of the substantial problem here. before this law took effect, there were approximately 65-70,000 abortions a year annually. the asc clinics that will be able to remain open performed about 14,000 a year. that's what the record tells you. it's dr. grossman's expert testimony, it's in the ja from pages 255-259 -- >> about 20%. >> so they'd have to increase four or fivefold in a very short period of time against the backdrop of having to meet the problems that the admitting privileges clause requires.

it's just wrong, and if you look at the expert testimony i identified, you'll see what dr. grossman said first is something that is just common sense, these facilities aren't going to be able to increase by four or five times. and second, he didn't just rely on common sense. he looked at the period of time between when the admitting privileges requirement resulted in the closure of 20 clinics, he looked at that period of time, and he studies the number of abortions that occurred at the remaining ark sc facilities during that period of time, and one would expect half the facilities in the state closed -- >> do you think the district court would have had discretion, district court having substantial equitable powers that appellate courts don't, to say we're going to stay this requirement for two and a half, three years to see if the capacity problem can be cured? could a district judge do that? >> you know, i apologize, justice kennedy, i haven't given that question thought, and i'm loathe to opine on that without

having given it thought. >> i mean, district judges often think they can do anything. >> right. [laughter] but i do think, as i said, with respect to the capacity problem, the key thing here is that when -- in addition to these asc clinics not providing more abortions once half the clinics in the state closed, you had -- and this is, again, in dr. grossman's testimony -- significant increases in the overall number of abortions particularly in the parts of the state that are away from major cities -- >> there is no evidence of the actual capacity of these clinics. and why was that not put in? particularly since if we look at the louisiana case, we can see that it's very possible to put it n. and some of the numbers there are quite amazing. there's a doctor there performed 3,000 abortions in a year. so we don't really know what the capacity of these, of these asc clinics are. >> i think you have expert testimony in that regard. >> yeah, but what is it based on?

you know, he -- it's not based on any hard statistics. >> it's common sense -- >> well, common sense -- >> but it's beyond that, as i said, justice alito. they studied the period of time in which half the clinics in the state were closed, and you would expect that the additional ascs could handle the capacity, they would have, and they at no time. >> he said that the number, the percentage of abortion at the ascs went down by 4.4%, and there was an increased demand for abortion, but there's no statistic showing there was an increased demand for abortion in texas. >> i thought the affidavit, page 9, table two says that the number of aborgs that are -- abortions that are on average performed annually at the remaining clinics is 2,000. so let's multiply by two, and you get 16. let's multiply by three, you get 24.

there were 70,000, approximately, women who needed these procedures. so taking that, is that accurate? >> yes. >> okay. >> in the short time i have remaining, i'd like to finish with one point, if i could. i think, ultimately, the question before you is whether the right here is going to retain real substance and whether the balance struck in casey still holds. if that right still does retain real substance, then this law cannot stand. the burdens it imposes, the obstacles are far beyond anything that this court has countenanced, and the justification for it is far weaker than anything that this court has countenanced. it is an undue burden. it is the definition of an undue burden. and, mr. chief justice, in response to your question, undue means excessive or unwarranted. could be excessive or unwarranted as compared to the obstacle in -- [inaudible] certainly. but it also is compared to its need. >> i would have thought casey

and gonzalez also said "substantial obstacle." and i would have thought that's something you could look at in an objective manner. actually, i don't understand why you're arguing the opposite. i think whether it's an obstacle or a burden would exist without regard to the strength of the state interest. the strength of the state interest is evaluated on whatever test there is with respect to that legislation, and then you'd look at what the impact was. >> i think it's actually in the interest of government to look at it the way that we're suggesting it ought to be looked at, and if you don't -- >> sure. >> -- like to take a minute to explain why. i think, mr. chief justice, that is because it is one thing to say that you're going to impose a requirement that does work as much to be the kind of obstacle that these requirements do when you have justification that's, frankly, flimsy, and the american medical association has told you is grounded. but if the government were able to come in, if it were us or the

state and say, actually, this requirement is going to make a difference in saving hundreds of lives, that might be a burden that you would think would be acceptable given the medical benefit. that's why we think the test that makes sense, the best understanding of undue burden that works best for the government is the one we're suggesting. but i think which ever way you look at that, whether you look at it our way or as two separate inquiries, this law, h.b. 2, can't pass it for the reasons i said. and i think, therefore, if you do find this law's upheld, what you will be saying is that this law really only exists in theory and the commitments that this court made in casey will not have been kept. thank you. >> thank you, counsel. >> mr. keller? >> thank you, mr. chief justice. >> i will afford you an additional eight minutes, i think that's roughly -- >> thank you, mr. chief justice,

and may it clear the court. texas acted to improve abortion safety, and planned parenthood provides this increased standard of care and has opened new ascs. abortion is legal and accessible in texas. all the texas metropolitan areas that have abortion clinics today will have open clinics if the court affirms, and that includes the six most populace areas of texas. >> and how many women are located over a hundred miles from the nearest clinic? >> justice ginsburg, ja-242 provides a 25% of texas women of reproductive age are not within 100 miles of an asc, but that would not be include mcallen and el paso where the santa teresa facility is. >> that's odd. you point to the new mexico facility. new mexico doesn't have any

surgical asc requirement, and it doesn't have any admitting requirement. so if your argument is right, then new mexico is not an available way out for texas, because texas says to protect our women, we need these things. but send them off to mexico, new mexico where they don't get admitting prims, no sac. and that's perfectly all right. if that's all right for the women in the el paso area, why isn't it right for the rest of the women in texas? >> the policy set by texas is that the standard of care for abortion clinics should rise to the level of ascs for clinics and admitting privileges for doctors. texas obviously can't tell new mexico how to regulate. the substantial obstacle inquiry examines whether there is the ability to elect the

procedure -- >> then why should it count those clinics? >> well, here evidence in the record showed that the particular clinic was one mile across the border or, and women in el paso often use that facility to obtain abortions. so that would go into the contextual analysis -- this doesn't go to the facial challenge, but the applied challenge on whether women in el paso do have access to abortion. over 90% of texas women of reproductive age live within 150 miles of an open clinic -- >> the mr. keller, the statistics i gleaned were that 900,000 women lived further than 50 miles from a provider, 750,000 further than 200 miles. that's as compared to 2012 where fewer than 100,000 lived over 150 miles, and only 10,000ing lived more than 200 miles away. so we're going from, like,

10,000 to three-quarters of a million living more than 200 miles away. >> well, justice kagan, first of all, i believe the statistics on j-242 would not account for el paso or mcallen. but looking at the fraction, that at a minimum a large fraction of cases whether would have been -- [inaudible] the travel distance even in casey, the district court found over 40% of pennsylvania women were going to have to travel at least one hour, sometimes over three hours, and there was a 24-hour waiting period. texas reduces that waiting period for two hours traveling over 900 miles, and -- 100 miles. and here that relevant fraction is lower, and under casey than the facial challenge would not succeed and would have a heavy burden x they haven't shown any capacity evidence. >> when there's a need, meaning where are or you taking into

account in undue burden analysis the value of the need being imposed? meaning even if i grant you that in some circumstances travel time is necessary because you just can't get any kind of abortion clinic to go into a particular area. so you might have to impose a burden that might be undue in other circumstances. where do we evaluate the benefit of this burden? what's the need? your brief seems to be telling us that there's no role for the court to judge whether there's really a health benefit to what you're doing. >> well, there would be three elements of the doctrine. there's the rational basis test -- >> i'm not talking about the doctrine. i'm talking about the question i asked which is according to you the slightest health improvement is enough to impose on hundreds

of thousands of women -- even assuming i accept your argument, which i don't necessarily because it's being challenged -- but the slightest benefit is enough to burden the lives of a million women? that's your point? >> and what casey said is substantial obstacle test examines access to abortion. now, if a law had no health benefits, presumably it would be irrational, and even their expert acknowledged that some doctors do believe there are benefits for the asc and admitting privileges -- >> what is the benefit of the medical? the two pills that you take? what is the benefit of having a an ambulatory surgical center to take two pills when there's no surgical procedure at all involved? >> two responses, justice ginsburg. fist, the complication rates are greater from a drug-induced -- >> on the come my case, that

complication is likely to arise near the woman's home, much more likely to arise near her home which the 30 miles has nothing to do with. >> well, first of all, the two travel distances, that was about the drug protocol. that's a different part of the bill. that was in petitioner's first lawsuit, and they have not raised any challenge to that in this lawsuit. in any event -- >> i'm not talking about the prior lawsuit, i'm this lawsuit. you need to have access to a hospital within 30 miles. 30 miles of what? 30 miles of the surgical center when the woman lives at a much greater distance and she's going to go to any hospital, it will be in her local community? not the surgical center. >> of course, most abortions are surgical abortions in the state. >> well, i'm asking just about the medical. >> that's right. and also -- >> and i can't imagine what is the been fit of having --

benefit of having a woman take those pills in an ambulatory surgical center when there's no surgery involved. >> well, there would be surge in a complication, and all abortion clinics in texas perform surgical abortions, and that's why petitioners didn't defend -- >> it is not going to occur on the spot. i mean, you have to concede that. in the case of the medical abortion, the complication generally arises after the woman is back at home. and then the nearest hospital has nothing to do with the surgical center. >> although when the significant majority of women are living within 50 miles of the clinic, in most is situations they are going to be in that facility, and it is beneficial to have continuity of care to prevent miscommunication and patient abandonment. anyway, the facial challenge is -- >> before you get, is the

underlying premise of your argument, mr. keller, and of the state's position that the thrust, the impetus, the effect of this law is to increase surgical abortions as distinct from medical abortions and that that is within the state's authority to do? because my reading indicated that medical abortions are nationwide but down significantly in texas. >> it would certainly be permissible to regulate both surgical and drug-induced abortions. and in drug-induced aborgs since there are greater complications, in the the fifth lawsuit, that was a 6% -- >> but i thought an underlying theme or at least underlying factual demonstration is that this law has really increased the number of surgical procedures as opposed to medical procedures and that this may not be medically wise. >> insofar as -- >> you might say this is within

the authority of the state to do, but -- >> given the higher -- >> and i want to know what your position is. >> and, justice kennedy, given the greater complication rates from drug-induced abortion, the legislature would be permitted to act in that way. the petitioners have not challenged that particular part of the court's holding in the fifth circuit. they haven't raised that. what they're trying to do on the effects prong is say that the remaining clinics lack capacity. the fifth circuit correctly noticed there's no capacity, they didn't even try to take discovery from the non-petitioner clinics what he did is he looked at the number of abortions and percentages that were being performed, and a year earlier ascs had -- >> what evidences would you have put in on the capacity issue if you had been afforded that opportunity? evidence that would rebut the

statistically significant showing on the other side about capacity and also the circumstantial evidence about the timing of the closures. >> well, this is not in the record, but in the first lawsuit, this is exhibit k, to their application to vacate the stay in this court in the first lawsuit, the other litigation, they went clinic by clinic in a chart -- excuse me -- and they tried to estimate the number of abortions that could be performed in those facilities. the district court didn't make a fact finding there, but the houston planned parenthood asc they estimated could perform 9,000 abortions annually. that's 175 a week is what their chart says. >> before the act? >> well, yes. because the houston -- planned parenthood operates five of the nine ascs. planned parenthood is not in this lawsuit. they were in the first lawsuit. they have complied with the law. they have doctors with admitting privileges, and they have facilities in each of the five most populace texas cities.

so if one asc can perform9 ,000 annual by -- 9,000 annually, it does not stretch collegiallity to believe those would suffice -- >> and you asked to put in this evidence, and the court said, no, you may not -- >> we didn't put in the evidence -- >> i said, did you ask to put in this evidence? >> no. >> no. thank you very much. okay. i'd like to go back to the question that justice ginsburg was asking which is about what is the benefit of this procedure. there are two laws. i'm focusing on the first law. the first law says that a doctor at the abortion clinic must have admitting privileges in a hospital 30 miles within that -- nearby, right? >> correct. >> okay. prior to that law the law was

that the clinic had to have a working arrangement to transfer such a patient. correct? just reading from this. >> that's correct. >> okay. so i want to know go back in time to the period before the new law was passed. where in the record i find evidence of women who had complications who could not get to a hospital even though there was a working arrangement for admission? but now they could get to a hospital because the doctor himself has to have admitting privileges. which were the women, on what page does it tell me their names, what the complications were and why that happened?

>> justice breyer, that is not in the record. >> but -- so judge posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing. and he's not certain that even that one is correct. so what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one? but not in texas. [laughter] >> justice breyer, the national abortion federation previously recommended that women use abortion doctors -- >> i didn't ask that. i'm sure there are people with all kinds of reasons that would like to have this and so forth. and i'm not -- i'm just asking you where we have a judicial duty to say whether this is an

undue burden upon the woman who wants the abortion. there are two parts. is she burdened, and what is the men put. and -- benefit. and now on the first one i've asked you to give a single example of an instance where there is a benefit, and you say -- i think quite honestly -- there is no such burden. so let's turn to the second. the second one, according to the amicus briefs here which i guess i could validate, that even without the surgical center, leave it out. there are risks. quite correct. those risks are roughly the same as the risk that you have in a dentist's office when you have some surgery where you don't have an ambulatory surgical center. they are 28 times less than the risks of a colonoscopy where you don't have ambulatory surgical

center. they are hundreds of times less -- you've seen these briefs. okay. so i read them and you read them. and so what is the benefit here to giving, i mean, the woman -- i can't say it's zero here. this ambulatory surgical center when the risk is minuscule compared to common procedures that women run every day many other areas -- in other areas without ambulatory surgical centers? >> that has never been the test under casey about substantial obstacle x this court even before casey upheld an asc requirement. virginia did not require that brain surgery be performed in a hospital or asc. that's at 543 of the oral argument transcript. in looking at the laws, it's whether the legislature has a legitimate purpose enacting -- >> that's an interesting -- >> well, can a legislature say

anything general? if the legislature says we have health-related abortion regulation here, we've looked around the country, and we think that there are ten great hospitals in the country, you know? massachusetts general, brig map and women's, and we're going to make all our abortion facilities conform to the standards of those hospitals. and that will, you know, that will increase medical care. now, it's true, we don't make anybody else doing any other kind of procedure conform to those standards. but we think it will increase health benefits if abortion facilities conform to them. would that be all right? >> under this court's precedent, abortion can be treated differently. >> well, wait a minute -- >> so every abortion facility has to hit the standards of mgh? that would be all right? >> there would have to be medical evidence, at a minimum

disputinned. in here -- disputed. even if you don't accept our medical testimony, although it was admitted into the record -- in i'm sure there's medical evidence that if every facility was a as good as massachusetts general, they would be better facilities. i'm sure that you could find doctors to say that because mgh, it's a great hospital, but that would be okay even though it's not applied to any other kind of facility doing any other kind of procedure, even though we know that liposuction is 30 times more dangerous -- >> that was the holding in -- [inaudible conversations] >> would it not be the case that a state could increase the standard of care as high as it wants so long as there's not an undue burden on the women seeking abortions? so, you know, if they could increase the standard of care up to the very highest anywhere in

the country and it wouldn't be a burden on the women, well, that would be a benefit to them. would this be anything unconstitutional about that? >> no, provided that women are able to make the ultimate decision to -- >> but doesn't that hoe the undue burdennest is weighed against what the state's interest is? >> justice kennedy -- >> these two complete hi discreet -- completely discreet categories, undue burden, and we don't look at the state's interest? >> what casey noted is the underburden test and that's a question about access. as to whether what the state's interest would recollect that would be going to a rational basis review or maybe a purpose-based analysis, but you'd need the clearest truth about unconstitutional purpose. to infer that there's an unconstitutional purpose when there's a legitimate interest in promoting personal health, and

even roe v. wade said -- >> what is the legitimate interest in protecting the health of -- what evidence is there that under the prior law, that the prior law was not sufficiently protective of woman's health? as i understand it, this is one of the lowest risk proceed yours -- procedures. and you give a horrible from pennsylvania, but absolutely nothing from texas as far as we know. this is among the most safe, least risk procedures, an early stage abortion. so what was the problem that the legislature was responding to? that it needed to improve the facilities for a woman's health in. >> in petitioner's first lawsuit, planned parenthood admitted that over 210 women annually are hospitalized because of abortion complications. >> as compared to childbirth,

many, many, much riskier procedure, is it not? >> well, the american center for law and justice amicus briefs dispute that. regardless -- >> is there really any dispute? [laughter] that childbirth is a much riskier procedure than early stage abortion? >> justice ginsburg, those amicus briefs look out when you lack at complication reporting, there may be a difference. and the reason why reporting is important, there's evidence that it's underreported. >> by hospitals? be underreported -- most of the complications you're talking about were reported at hospitals, correct? there's some evidence of not reporting other things outside the hospital, but you know the number of hospitals are accurately reported. >> well, abortion clinics are,

have to report complications in texas. whole woman's health -- >> complications within their clinic. >> that's right. and in ja-606 -- >> at 210 from 70,000? my math is pretty horrible. that's pretty small. >> and the statistic is that it is lower than 1%. however, when there are women -- >> i don't mean to negate that one should try to avoid injury to none, and don't take my question as that, but there are people who die from complication s from -- [inaudible] it may be unusual, yet there's a certain percentage that do that. yet we don't require that people take aspirins in acs certains or in hospitals. will needs to be some tie between the benefit and the burden, doesn't there? >> the purpose, the constitutional analysis would be that the texas legislature have

an invalid purpose. >> don't you think that you can read that from the fact that there are so many other medical treatments whose complication rates are so disproportionately higher, and the legislature is only targeting abortion when there is nothing about the figures before it that show a risk so unusual that it needs greater attention. >> but that would have been zurich, and this is why petitioners are trying to upset the balance that was struck in casey -- >> i don't see where this fits in. i mean, to the argument. i don't question their purpose. i won't question their purpose. >> good. thank you, justice breyer. [laughter] >> but the -- what their purpose is, they're worried about these complications, and they want to make life safer for the women. all right, let's take that as

the purpose. you said there aren't very many complications. now, would you say if you reduce the number of clinics as has been argue -- maybe it isn't exactly that, but -- and you suddenly have at least 10,000, maybe a few less can and maybe a few more women who have to travel 150 miles to get their abortion, maybe more, maybe stay overnight, maybe try to scrape together the money, you understand the argument. are there going to be more women or fewer women who die of complications due to an effort to create an abortion? i mean, you read the briefs, and you have read the same articles i have. and, of course, the argument is if you lead to self-indeuced abortion, you will find many

more women daying. so if the concern -- dying. so if the concern is this tiny risk of dying through a complication in a clinic, is this a remedy that will, in fact, achieve the legislature's health-saving purpose? >> justice breyer, self-induced abortion, the evidence in the record on that were two points of testimony both from mcallen where petitioners prevailed. as applied challenges can be brought in areas, for instance, if there could be shown substantial bobs consult based on -- obstacle based on travel distance. the four clinics that closed all those closed before the admitting requirement took effect. they were all planned parenthood -- >> as apply challenge, there's a real problem with that because suppose you bring in that and you're successful. you can't have a predation of an

ambulatory surgical center on the spot. these -- once these facilities are closed, they're closed, and they can't start up tomorrow. is so the as applied challenge, i mean, the woman's problem would be long over before this clinic, the kind of clinic they had before, could be restarted. >> justice ginsburg, the mcallen clinic reopened, and as justice kagan mentioned, clinics did reopen. the lubbock facility, though, which is one of the facilities in west texas in petitioner's first lawsuit they told this court that that clinic was going to close regardless. seven of the eight clinics that closed before the admitting privileges requirement took effect, seven of those eight were planned parenthood clinics. they are complying with the law and providing that increased standard of care. and also the 11 clinics that closed the day the requirement took effect, i don't believe six

of those clinics can be deemed to have ceased performing abortions because of that requirement. the lubbock facility was going to close anyway, killeen had -- >> there was a stipulation that is no currently-licensed abortion facility meets the asc requirements. each will be prohibited from performing abortions after the day the law goes into effect. that's a stipulation, not a question of what evidence of there was. texas stipulated that no currently-licensed facility meets asc requirements, and each will be prohibited from performing abortions. >> and that one goes to asc requirement as opposed to the admitting challenges employment. but four of the facilities that reopened of those 1 when -- 11 when the admitting requirement went into effect. as ja-131, 715, 111, and 1437,

two with of those were ascs. now, when it comes to the count of ascs, there are nine performing abortion today in texas. three opened up after house bill 2 was passed. so in examining the facial challenge to that requirement, when asc -- >> were they opened as a result of the law? or were they planned to be opened before the law went into effect? because i think that makes a difference to me if they were planned to be opened. it takes quite a while to get the money, get the investors, buy the land, do the building. it seems to me that they must have been planned for a while x. if they were, it was because there was a need independent of the number of abortions. >> well -- >> in other words, it's fortuitous that they've come into existence, but it was, their need was not there, was independent of the reduced

number of facilities elsewhere. >> the legislature provided 13 months to come into compliance. in addition, you could lease space. texas has over 430 -- there were 433 general asc in texas at the -- >> but most of them don't choose to provide abortion. >> that's correct. of course, space could be leased in those. >> so what you don't know is do you have enough resources to open up an asc if you're going to do abortions? are you going to get enough developers to invest in your work. >> yeah. the point being that there are going to be at least ten clinics -- >> could i ask about mcallen? there was somebody in the record that at least four doctors had, from that spot had asked for admitting privileges. the fifth circuit's remedy only provided for one doctor, dr. lynn, who's past retirement age to be the only doctor

performing abortions in that clinic. now, if the clinic had -- i don't know how many it had, but out had at least four people before. it seems rather callous to say as a remedy that we're going to make that one doctor do the work of four or maybe more doctors who didn't get admitting privileges. why is even the fifth circuit's remedy reasonable? >> because, justice sotomayor, that was the only named plaintiff for the as-applieded -- >> but if -- [laughter] yes, as applied, the acs law is affecting this clinic because it can't get its doctors certified. so why does it require a named plaintiff to relieve that clinic of the obligation of going without admitting privilegeses? >> well, that wasn't the only one of the four doctors that joined in this lawsuit. most of the doctors and clip you cans in -- >> but you just listed the requirements because you know that it's the only clinic in the

area. >> well -- >> so if any doctor who's licensed appropriately can get admitting privileges, they should be permitted to work in that clinic. why does dr. lynn have to become an indentured slave to insure that women in her area are provided with their fundamental right to choose? >> justice sotomayor, it would not be an indentured situation. if there were new facts that came into being -- that. >> but she wants to leave. >> general, could i ask, could i go back to a question, something that you said earlier, and tell me if i'm misquoting you. you said that as the law is now urn your interpretation of it texas is allowed to set much, much higher medical standards whether it has to do with personnel or procedures or the facilities themselves. higher medical standards including much higher medical standards for abortion facilities than for facilities that do any ore kind of -- any

other kind of medical work, even much more risk key medical work. and you said that was your understanding of the law. am i right? >> correct, and this court -- >> and i guess i just want to know why would texas do that? >> when there are comply cakeses -- complications from abortion that's in the record, texas can enact laws -- >> no, i know. but the assumption of the question, and i think you haven't challenged this assumption, is there are many procedures that are much higher risk; colonoscopies, liposuction, on and on. and you're saying, that's okay, we get to set much higher standards for abortion, and i just want to know why that is. >> justice kagan, this pill has passed in the wake of -- bill has passed in the wake of the scandal that -- >> but, of course, i mean, texas' own regulations actually have made abortion facilities such that that can never happen

because you have continual inspections. i mean, to your credit. so that was really not a problem in texas, having a kind of rogue outfit there. texas has taken actions to prevent that. so, again, i just sort of -- i'm left wondering, given this baseline of operation that prevents rogue outfits why it is that texas would make this choice. you say you're allowed to make this choice, and we can argue about it, i just want to know why texas would make it. >> i think the amicus brief that canvass the statements confirms that there were complications, that these laws do have benefits and even bill to appointments said -- >> you -- you're not really contesting that there are greater complications in abortion facilities than there are with a great deal of medical procedures that are not subject to the same standard or of

regulation. >> brain surgery, for instance, would almost certainly have -- it would have higher risks of complication -- >> as to rogue facilities which justice kagan just mentioned, one of the amicus briefs cites instance after instance where whole woman's facilities have been cited for really appalling violations when they were inspected; holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments. is that not the case? >> stories similar to that are also raise inside the 11 texas legislators' amicus brief withs. >> these are not stories. these are, as i understand it, actual reports of inspections of those facilities. >> the amicus briefs do discuss that, and the complications from whole woman's health were underreported to the state, that's finish. >> in texas under the fire law

has the right to make random inspections. the problem in pennsylvania was these filthy clinics hadn't been looked at by anyone in the state for 16 years. but texas can go into any one of these clinics and immediately spot a violation. it says you can't operate until you come up to speed. so texas had, as justice kagan pointed out, its own mechanism for preventing that kind of thing from happening. >> texas did have existing regulations increasing the standard of care is valid particularly not only in light of. >> it's valid only if it's taking care of a real problem. >> and there are abortion complications and underreported -- >> well, no, no, no, a real problem. meaning the governor of pennsylvania said it was a regulatory failure. and only in that this clinic had not been inspected for 15 years. he, the doctor was fabricating

his reports. that could happen almost in any setting. anyone who intends to break the law the is going to break the law whatever the regulatory rules are. you're going to have doctors, as happened pre our laws who were performing abortions without permission in their offices or without licenses. and i don't want to suggest that we should presume that's going to happen, but it will happen. >> but the constitutional standard for whether a tate can make abortion safer can't be that it can only prevent a goes knell situation. >> well, but you have to see as justice breyer asked you earlier why aren't the problems, isn't this a self-created problem? what happened in texas independent that raised a gazelle-like situation in texas that made the legislature to concerned after so many years

about taking care of this greater risk in abortions as opposed to all the other procedures that are performed in non-ac is s facilityings? >> because there are comply complications in abortion -- >> but there is complications in colonoscopies, and they're what? 15 times -- 28. justice breyer just corrected me. [laughter] 28 percent higher? i mean -- >> legislatures react to topics that are of public concern. in gonzalez, the court noted after dr. haskell's procedure for partial birth abortion more of a nationwide concern, states reacted. when the legislature sees there's a problem and maybe wouldn't rise to the same level, but the legislature can still act to make abortion safer which is precisely what texas did here. if i can address my friend's intention of the record as to what clinics closed preemptively, there's evidence in the record that killeen,

mcallen and el paso, three clinics, closed preemptively. they brought as a applied challenges in mcallen and prevailed. el paso did not prevail, and the killeen clinic did not seek relief. ind.c., if there are future concerns, the as applied challenging can be raised. there was no as applied relief sought in this case, and if it would turn out that there were going to be an issue in that area, a future as applied challenge could address -- >> that's the problem once the clinic closes. you said mcallen reopened, but that was very swift. once a clinic closes, equipment is gone, the theres are gone. the doctors are gone. you can't reinstate it tomorrow. it won't be there. there will be no remedy for that woman who succeeds in the as applied challenge. >> mr. chief justice, if i may -- >> your time's expired.

>> -- address it. except more there, the clinic was closed for a longer period of time. there's an el paso clinic that actually reopened also months later. so an as applied challenge could allow a clinic if an undue burden were shown because of driving distances or capacity in the future in that discreet instance but were in this facial challenge posture, petitioners show a burden -- >> self-evident in any area that's this area of western texas is as big as california, no? bigger? >> well, aye not sure finish i'm not sure about california, but it certainly is a large size. >> huge area. >> absolutely. >> why isn't it self-evident that if you have a law that says you can only be an acs provider, and who's going to come in and say i can't be an acs provider bucks it's answer undue burden on me or the women in that area? >> the right is possessed by the

women. >> why don't we take this lawsuit as to those women saying just that? >> because there was no -- >> we can't have a law that has marginal, if any, medical benefit be applied to this procedure anywhere where there's an undue burden on people -- on women. >> planned parenthood had four clinics in west texas. they all closed before any part of h.b. 2 was actually put into effect, they could have brought an as applied challenge, they didn't. they were part of the first lawsuit. indeed, facial challenges are barred by -- [inaudible] and there are significant record gaps. >> may i ask one question? earlier in your argument you were quoting how many women are within a reasonable range of the clinics. but don't we know from casey that the focus must be on the ones who are burdened and not the ones who aren't burdened? there is -- and the district

court said, you know, this is not a problem for women who have a means to travel. that those women will have is access to abortion anyway. so in texas or out of texas. so casey was quite precise in this, and it's talking about husbands and notification. all the women who are getting abortion, you look only to the women for whom this is a problem. and so the only women we would be look at -- it's not all the women who live in austin or in dallas, but the women who have the problem who don't live near a clinic, isn't that the clear message of casey and the husband notification? >> when a law's regulating women as it would in the spousal notification provision, that might be different. but when we're talking about

doctor and clinic regulations, when the law going to have a relevant effect is going to be for every doctor and every clinic which is precisely why the fifth circuit noted that was the proper denominator. petitioners have not challenged that denominator holding in their opening -- >> but this is about, what it's about is that a woman has a fundamental right to make this choice for herself. that's what we thought as the starting premise. and then this is, certainly, about -- casey made that plain. the focus is on the woman, and it has to be on the segment of women who are affected. >> yes. and the right held by women to make that ultimate decision is not burdened and at a minimum in texas when each metropolitan area will still have a clinic even after the law goes into effect and future as applied challenges would -- >> thank you, counsel.

>> thank you, mr. chief justice. >> ms. toti, you have five minutes remaining. >> thank you. a few brief points. first, the record cite from earlier, evidence that h.b. 2 caused clinics to close in texas. the plaintiffs testified that h.p. 2 caused clinics in killeen, austin, beaumont, mcallen and el paso to close x that testimony is at ja-339, 715, 722 and 731. respondents e stipulated that the asc requirement would cause any licensed abortion facility still operating on the day it took effect to close. plaintiff's exhibit 28 at page 2 which is not in the joint appendix but was admitted in the record at 2808 and 09 demonstrates that for the five years prior to the enactment of h.b. 2 the number of abortion clinics in texas remained fairly constant.

and finally, at ja-249 and 1430, testimony from dr. grossman and at 439 our response to the fifth circuit's directive showing that 11 clinics closed on the day that the admitting prims requirement -- this that's the last evidence was from grossman? >> ja-229 is from dr. grossman. >> at page 232 he said i am not here offering any opinion on on the cause of -- >> that's correct. but his testimony supplies the fact from which the district court drew the inference that 11 clinics closed on the day that the state first enforced the admitting privileges requirement. the district court referred from that fact that enforcement was the cause of the closure, and respondents offered no alternative explanation for why there would be such a precipitous drop in the number of abortions -- >> could you tell me why planned

parenthood left the western area? the general says that planned parenthood, the acs and the admitting privileges had nothing to do with the closures in the western area of texas. >> well, the two clinics in el paso, which is in that western region of texas,ing that would be forced to close as a result of these requirements are not operated by planned parenthood. the plaintiff in this case is another independent provider that operates those clip you cans. >> as to the clinics where there is direct evidence, does the direct evidence show whether the cause was the admitting privileges requirement or the acs requirement or both? >> with respect to -- it does specify and some specify the admitting privileges requirement and some specify the asc requirement and some specified both. so with respect to whether abortion can be regulated differently than other medical procedures, abortion can

certainly be treated differently if there's a reason to treat it differently. but texas may not impose unnecessary medical regulations that burden women's access to apportion. in -- to abortion. second trimester procedures at issue in that case were consistent with prevailing medical standards at the time, and that was critical to the court's decision. that is not the case here. there is extensive testimony in the record that these requirement ares are not medically justified, they are not consistent with prevailing medical standards, and their amicus briefs from leading medical associations including the ama confirming that. >> do you think that federal district judges or this court is well qualified to determine whether there's a different risk with respect to abortion as compared to ore procedures that -- to other procedures that may or may not have to be required, may or may not have to

be performed in an asc? >> your honor, district courts are quite competent to determine the credibility and the reliability of expert testimony. that's something that's within the core competence of a trial court. and the trial court in this case determined that there was no credible or reliable evidence supporting texas' to contentions about the medical justification for these laws. and further, had texas truly believed that these laws provided some important benefit for outpatient surgery, it would have made them generally applicable. all outpatient surgical providers would have to have admitting privileges or practice in an asc, but that's not the case. texas law expressly authorizes other surge call procedures including those performed under general anesthesia which early abortion is not to be performed in the physician's office. and even other physicians that operate at an asc aren't required to have admitting privileges. the facility is merely required

to have a transfer agreement. so these regulations target one of the safest procedures that a patient can have in an outpatient setting for the most onerous regulation. >> thank you, counsel. case is submitted. >> you're watching booktv on c-span2 with top nonfiction books and authors every weekend. booktv, television for serious readers. ..