held to be unconstitutional? general verrilli: 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 obstacle effect. in fact, some parts of the regulation actually restate and reauthorize regulations that were already on the books. and so i suppose one could say that with respect to that set of regulations, that the district court could have severed them one could say that. of course, they're already in the preexisting regulations -- justice alito: but there are there are things that go that go i haven't checked everything as compared the abortion the prior abortion clinic licensing law against the asc requirements, but there are some where there's an increase in what's required. it seems pretty reasonable. under the under the the old the old law, there 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 to say that there has to be a registered nurse who knows how to do cpr? general verrilli: so i -- i don't want to state an opinion

one way or the other about that. but i do want to what i but i think getting to the point of your honor's question, i think the problem the district court confronted here, and i think the reason the district court acted reasonably, despite the presence of the severability clause and the severability clause provides an instruction that that every provision, every clause, every word, every application, every individual should be severed. and the problem is the problem with the kind that the court noted, i think, in the ayotte case, for a court trying to apply that, 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 it's going to be invading -- justice alito: well, it's all -- general verrilli: the state's regulatory problems. justice alito: it's work, but maybe the district court should have done that work. i mean, i read through this, and i was surprised. i read through these regulations. i was surprised by how many are completely innocuous. and many of them have nothing to do they have to do with basic safety. they don't even have anything to do, in particular, with abortion. so the entrances to the clinic have to be at grade level. you have to have an elevator. the 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 and things of that nature -- i don't know why things couldn't have been severed out, if there were some that were -- general verrilli: i i think some could have been, if the court believes a remand is appropriate for the for the remedy to be more carefully tailored in the way that the court did in the ayotte case. we think that would be appropriate. but we do think that the basic point remains that this is a substantial obstacle. and i would like to address two points that arose during petitioners' argument. first, closures, and then, capacity. with respect to closures, here's where i think the record will show you taking the asc requirement first. there is a stipulation, ja 183, that all all clinics that weren't already closed as a result of the admittingprivilege requirement would would not be able to meet the asc requirements, and therefore would have to cease operations. justice kagan noted they did cease operation during the period in which the law was in state. there's evidence in the record with respect to the seven

clinics that are operated by whole woman's health that they -- that it was physically impossible to meet the asc construction requirements because it couldn't fit on the real estate footprint that they had. they couldn't meet them. there's expert testimony in the record from dr. layne farrar, the economist, that the cost of retrofitting these clinics to meet the requirements would be between $1.6 million and $2.3 million, which would be prohibitive. that the cost of building a new facility would be at least $3.5 million which would be prohibitive. that the additional operating cost of an asc would be between 6.3 and $6.9 million a year more. so i think with respect to those, there's ample evidence. with respect to the with respect to the admittingprivileges requirement, we know that of the clinics that closed between the date when the law was enacted and the effective date of the admittingprivileges requirement closed on the date that that requirement became effective. seems to me the only reasonable inference you can draw with respect to those is that that law caused the closure. with respect to the others, i don't think there's evidence with respect to each one, but with respect to several, there is evidence that they closed in advance of the effective date,

because they were otherwise going to have to pay a licensing fee to stay open for another year, which they knew they were not. and they knew they weren't going to be able to stay open, and they didn't want to flush the money away. so i think there's ample evidence in the record with respect to causation. now, with respect to capacity, i really think this is key, because i do think this is the locus of the substantial obstacle problem here. with respect to capacity, before this law took took effect, there were approximately to , -- 65-70,000 abortions a year annually. the asc clinics that will be open,n able to remain will perform about 14,000 year. that's what the record tells you. it's dr. grossman's expert testimony. it's in the ja from pages 225 to 259. justice kennedy: about 20%. general verrilli: 20%. so they'd have to increase four or fivefold in a very short period of time with the against the backdrop of having to meet the problems that the admittingprivileges requirement causes. now, i understand that the fifth circuit said that was ipse dixit, but with all due respect,

that's not binding on you and it's just wrong. and if you look at the expert testimony at the ja pages i identified, you'll see that what dr. grossman said first was something that is just common sense, that these clinics aren't going to be 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 admittingclosures requirement resulted in the closure of clinics. he looked at that period of time, and he studied the number of abortions that occurred at the remaining asc facilities during that period of time. and one would expect, given that half the facilities in the state closed, that there would be a substantial increase -- justice kennedy: do you think the district court would have had discretion the 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 could a district judge could that? general verrilli: you know, i i apologize, justice kennedy. i haven't given that question thought, and i'm loathe to opine on that without having given it

thought. but i do think -- justice kennedy: i mean, district judges often think they can do anything. [laughter] general verrilli: but 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 were far away from the major cities, the northern justice alito: there is -- justice alito: there is no evidence there's 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 in. and some of the some of the numbers there are quite quite amazing. there is one dr. there, performed three dozen abortions in a year. so we don't really know what the capacity of these of these asc clinics -- general verrilli: well, i think --

i think you have expert testimony in that regard. justice alito: yeah. but what is it based on? it's based you know, he it's not based on any hard any hard statistics. general verrilli: well, it is. it's common sense that you can't -- justice alito: well, common sense -- general verrilli: but 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 those clinics that the additional ascs can handle the the capacity, they would have, and they didn't. justice alito: he said that that the number of the percentage of abortions at the ascs went down by 4.4%, and there was an increased demand for abortion. but there's no statistic showing that there actually was an increased demand for abortion in texas. justice breyer: i thought that the grossman affidavit, which i have i grant you, it's going on the briefs but it said at table affidavit page 9, table two, says that the number of 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 i had taken that. is it that accurate? general verrilli: yes. justice breyer: okay. general verrilli: in 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 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, you in response to your question, undue means excessive or unwarranted.

could be excessive or unwarranted as compared to the the obstacle it imposes, certainly. but also, as compared to its need. chief justice roberts: i would have thought casey and gonzales also said substantial obstacle. and i would have thought that's something you could look at in an objective manner. why and 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, it would seem to me, is evaluated on whatever test there is with respect to that legislation, and then you'd look at what the impact was. general verrilli: well, 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 i if i you know, if could take two minutes to explain why. chief justice roberts: sure. general verrilli: and i think, mr. chief justice, that is because, you know, it is one thing to say that you're going to impose a requirement that does work as much as to be the kind of obstacle that this requirement that these requirements do, when you have justification that's frankly flimsy and the american medical association has told you was groundless. but if if the government were able to come in if it were us or if it were state were able to come in and say, well, 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 the test that makes sense, the best understanding of undue burden, the understanding of undue burden that works best for the government is the one we're suggesting. but i think whichever way you look at that, whether you look at it our way or whether you look at it as two separate inquiries, this law, hb, can't -- hb 2, can't pass it, for the reasons i said. and i think, therefore, that if you do find that this law is upheld, what you will be saying is that this right really only exists in theory and not in fact, going forward, and that the commitments that this court made in casey will not have been kept. thank you. chief justice roberts: thank you, counsel. mr. keller.

mr. keller: thank you, mr. chief justice. chief justice roberts: i suppose i should before you get started, we'll afford you an additional eight minutes. i think that's roughly mr. -- roughly. mr. keller: an extra thank you, mr. chief justice, and may it please the court. res judicata bars the facial challenges. in any event, 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 populous areas of texas. justice ginsburg: well, how many women are located over 100 miles from the nearest clinic? mr. keller: justice ginsburg, ja 242 provides that 25% of texas women of reproductive age are not within miles of an asc. but that would not include mcallen that got asapplied relief, and it would not include el paso, where the santa teresa, new mexico facility is. justice ginsburg: that's that's odd that 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 new mexico where they don't get it either, no admitting privileges, no asc. and that's perfectly all right. well, if that's all right for the the women in the el paso area, why isn't it right for the rest of the women in texas? mr. keller: 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, but the substantial obstacle inquiry examines whether there is the ability to make the ultimate decision or elect the procedure.

and when there is -- justice ginsburg: then why should it count those clinics? mr. keller: well, here, the evidence in the record showed that this particular clinic was mile across the border that was still in the el paso metroplex, and women in el paso often used that facility to obtain abortions. so that would go into the contextual analysis of this particular asapplied challenge. this doesn't go to the facial challenge, but the asapplied challenge and whether women in el paso do have access to abortion. in any event, over 90% of texas women of reproductive age live within miles of an open clinic as of today. -- within 150 miles of an open clinic as of today. justice kagan: mr. keller, the the statistics that i gleaned from the record without 900,000 300 miles. more than three quarters of a million further than 200 miles. that is compared to justin 2012, where fewer than 100,000 lived over 150 miles, and only 10,000 lived more than 200 miles away.

so we are going from like, two three quarters of a million living more than 100 miles away. mr. keller: well, justice kagan, first of all, i believe 242,tatistics that ja which is their expert testimony, would not account for mcallen or el paso, but in looking at the fraction of women affected. and that would be the facial challenge standard, that at a minimum, a large fraction of cases, there would have to be invalidity even if there was an undue burden. the travel distance of 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 hour waiting period. -- 24-hour waiting period. texas reduces that waiting period to two hours for traveling over miles. and in casey, that was not a facial substantial obstacle. here, that relevant fraction is is lower. under casey, the facial challenge would not succeed. and petitioners have a heavy burden, and they haven't shown any capacity evidence -- justice sotomayor: when there's a need. meaning, where are you taking an

account in the undueburden analysis the value of the need being of being imposed? meaning, even if i grant you that in some circumstances , travel time is necessary , because you 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 what's the need? you seem your brief seemed 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. mr. keller: well, there would be three elements of the doctrine. there's the rational basis test -- justice sotomayor: 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? mr. keller: and what and what casey said is the substantial obstacle test examines access to abortion. now, if a law had no health benefits, presumably it would be irrational. but even their expert and this is that ja 256 and acknowledged 258, that some doctors do believe that there are benefits for the asc and admittingprivileges requirement -- justice ginsburg: what what is the benefit of the medical, the two pills that you take, what is the benefit of having an ambulatory surgical center to take two pills when there's no no surgical procedure at all involved? mr. keller: two responses, justice ginsburg. first, the complication rates are greater. when there's a complication rate from a druginduced abortion, -- drug-induced abortion, then a surgical abortion is needed as a

followup. justice ginsburg: on that complication, that complication is likely to arise near the women's home, much more likely to arise near her home, which the miles has nothing to do with. mr. keller: 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 the petitioners' first lawsuit, and they have not raised any challenge to that in this lawsuit. in any event -- justice ginsburg: i'm not i'm not talking about the prior lawsuit. i'm talking about 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 if she's going to go to any hospital, it will be in her local community, not near the surgical center. mr. keller: of course, most abortions are surgical abortions in the state. justice ginsburg: well, i'm asking just about the medical. mr. keller: that's right. justice ginsburg: and and just

-- i can't imagine. what is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved? mr. keller: well, there would be surgery in a complication. and all abortion clinics in texas perform surgical abortions, and that's why petitioners probably didn't defend that aspect of the judgment. justice ginsburg: if it is a complication, 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. mr. keller: although when the significant majority of women are living within miles of the clinic, in most situations they are going to be in the facility. and it is beneficial to have continuity of care, to check for clinical competence, to prevent miscommunication and patient abandonment to have the admittingprivileges requirement. in any event, the facial challenge is certainly barred by

res judicata. it was litigated justice -- justice kennedy: before you get is it is the underlying premise of 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 up nationwide but down significantly in texas. mr. keller: it would certainly be permissible to regulate both surgical and and druginduced abortions, and in druginduced abortions, since there are greater complications. in the first lawsuit, fifth circuit noted expert testimony. that was a 6% rate, which justice kennedy: but i thought -- an underlying theme, or at least an 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. mr. keller: yeah. insofar as justice kennedy: you --

justice kennedy: you might say that this is within the authority of the state to do, but -- mr. keller: given the higher -- justice kennedy: and i want to know what your position is on that. mr. keller: and justice kennedy, given the greater complication rates from druginduced abortions, the legislature would be permitted to act in that way. in any event, petitioners have not challenged that particular part of the district court's holding that gave them asapplied relief on the druginduced abortion part. 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 will lack capacity. but the fifth circuit correctly noted that there is no capacity evidence in the record. they didn't even try to take discovery from the nonpetitioner clinics. and indeed, grossman's ipse dixit was in fact ipse dixit. what he did is he looked at the number of abortions and percentages that were being performed. and a year earlier, ascs had actually performed more abortions, and so the inference that they were at capacity cannot be drawn. chief justice roberts: what what evidence would you have put in on the capacity issue if you had been afforded that opportunity? mr. keller: well -- chief justice roberts: evidence that would rebut the

statistically significant showing on the other side about capacity, and also the circumstantial evidence about the timing of the of the closures. mr. keller: well, this is not in the record, but in petitioners' first lawsuit this is exhibit k to their application to vacate the stay in this court in the first lawsuit, the abbott 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 even make a factfinding there. but the houston planned parenthood asc they estimated could perform 9000 abortions annually. 9000. that is 175 a week. justice kennedy: before before the act? mr. keller: well, yes, yes, because the houston planned -- planned parenthood operates five of the nine ascs. planned parenthood is 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 populous texas cities.

and so if one asc can perform , 9000 abortions annually, and there are going to be at least eight other ascs in texas, plus the tenth facility, the mccallen facility, that obtained asapplied relief, it does not stretch credulity to believe that those remaining facilities would suffice to meet the demand for abortions. justice breyer: and you asked to put in this evidence, and then the court said no, we will not let you put in the evidence? mr. keller: we didn't put in the evidence because petitioners bore the burden justice breyer: i asked, did you ask to put in this evidence? mr. keller: no. justice breyer: no. thank you very much. okay. i'd like to go back to the the question that justice ginsburg was asking, which is about what is the benefit of this procedure. there are two laws. i am focusing on the first law. the first law says that a doctor at the abortion clinic must have admitting privileges in a hospital miles within that -- 30 miles within that --

nearby, right? mr. keller: correct. justice breyer: okay. prior to that law, the law was that the clinic had to have a working arrangement to transfer such a patient, correct? i'm just reading it from this. mr. keller: that's correct. justice breyer: okay. so i want to know, go back in time to the period before the new law was passed, where in the record will 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? mr. keller: justice breyer,

that is not in the record. justice breyer: but so mr. -- justice breyer: 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] mr. keller: justice breyer, the national abortion federation previously recommended that women use abortion doctors -- justice breyer: i didn't ask that. i'm sure there are people who had 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 benefit? and now on the first one, i've asked you to give a single example of an instance where there was 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 risks that you have in a dentist office when you have some surgery, where you don't have an ambulatory surgical center. there are times less than a risk of a colonoscopy, where you don't

have ambulatory surgical center. there are like 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, her risk, 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 in other areas without ambulatory surgical centers? mr. keller: that has never been the test under casey about substantial obstacle. and this court in simopoulos, even before casey upheld an asc requirement, and there virginia did not require that brain surgery be performed in a hospital or an asc. that's at of the simopoulos oral -- and that is that 5043 of the simopoulos oral argument transcript. it's because in looking at the laws, it's whether the legislature has a legitimate purpose in acting.

legislatures react -- justice sotomayor: that's interesting. justice kagan: well, can the legislature say anything, general? i mean, if the legislature says we have a a healthrelated 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, brigham 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. true, we don't make anybody else doing any kind of other procedure conform to those standards, but we think it will increase health benefits if abortion facilities conform to them. would that be all right? mr. keller: under this court's precedent, abortion can be treated differently. that's simopoulos. that's mazurek. -- justice sotomayor: well, wait a minute -- justice kagan: so every abortion facility has to hit the standards of mgh. that would be all right? mr. keller: well, there would have to be medical evidence.

it is at a minimum disputed. in here, their experts have conceded that doctors believe this this is precisely where there's a medical disagreement, even if you don't accept our medical testimony, although it was admitted into the record. justice kagan: i'm sure that there's medical evidence that if every hospital, if every facility was 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 times more dangerous, yet doesn't have the same kinds of requirements. mr. keller: and that was the holding in simopoulos. and in mazurek, the court -- justice sotomayor: well, do you think would you put justice -- justice alito: would it not be the case that would it not be the case that a state could increase the the standard of care as high as it once, so long as there is not an undue burden on the women seeking abortion? so, you know, if they could if they could increase the standard of care up to the very highest

anywhere in the country and it would into be a burden on the women, that would be a benefit to them. would there be anything unconstitutional about that? mr. keller: no. provided that women do are able to make the ultimate decision to elect the procedure. justice kennedy: but doesn't that show that the undueburden test is weighed against what the state's interest is? i mean, are they are they are these two completely discrete analytical categories, undue burden, and we don't look at the state's interest? mr. keller: what casey noted was that the undueburden test is, is there a purpose or an effect of the substantial obstacle to access? and that's a question about access. as to whether what the state's interest would be, that would be going to a rational basis review or maybe a purposebased analysis. but you need the clearest proof under the court's general doctrine about unconstitutional purpose. to infer that there is an unconstitutional purpose when there is a legitimate interest in promoting patient health, which is what texas did here even roe v.

wade said that states can ensure maximum safety for patients. justice ginsburg: but what is the legitimate interest in protecting their health? what evidence is there that under the prior law, the prior law was not sufficiently protective of the women's health? as i understand it, this is one of the lowestrisk procedures, and you give a horrible from pennsylvania, but absolutely nothing from texas. as far as we know, this is among the most safe, the least risk procedures, an earlystage abortion. so what was what was the problem that the legislature was responding to that it needed to improve the facilities for women's health? mr. keller: in petitioner's lawsuit, planned parenthood first admitted that over women annually are hospitalized because of abortion complications. here at -- justice ginsburg: as compared to

childbirth, many, many much riskier procedure, is it not? mr. keller: well, the american center for law and justice and former abortion providers' amicus brief dispute that. but regardless, there is evidence -- justice ginsburg: is there really any dispute that childbirth -- [laughter] is a much riskier procedure than an early stage abortion? mr. keller: justice ginsburg, those amicus briefs point out what when you look at record linkage statistic, instead of complication reporting, there may be a difference. and the reason why reporting is important is there's evidence in the record here that abortion complications are underreported. a 70-872.ja 844, and in fact, petitioner -- justice sotomayor: by hospitals? underreported most of the , complications you're talking about were reported at hospitals, correct? yes, there is some evidence of not reporting other things outside the hospital, but you know the number of hospitals are accurately reporting. mr. keller: well, abortion clinics are have to report complications in texas.

and petitioner whole woman's health -- justice sotomayor: complications within their clinic? mr. keller: that's right. and in ja , petitioner whole woman's health -- justice sotomayor: what's the percentage of -- my math is pretty horrible. it's pretty small. mr. keller: and and the statistic at ja is it is lower than 1%. however, when there are two to three women justice sotomayor: i don't mean to to negate that one should try to avoid injury to anyone, and and don't take my question as that, but there are people who die from complications from aspirin. may be unusual, but there's a certain percentage that do that. yet, we don't require that people take aspirins in asc centers or in hospitals. mr. keller: but in examining -- justice sotomayor: there has to be some tie between the benefit and the burden, doesn't there? mr. keller: in examining not effect, but the purpose. the constitutional analysis would be did the texas legislature have an invalid

purpose? and if -- justice sotomayor: well, 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? mr. keller: but that would have been simopoulos, it would have been mazurek. and this is why petitioners are trying to upset the balance that was struck in casey. justice breyer: 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. mr. keller: good. thank you, justice breyer. [laughter] [applause] justice breyer: but the the what their purpose is, that 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 argued, maybe it isn't you suddenly but have at least 10,000, maybe a few less, and maybe a few more , women who have to travel 150 miles to get their abortion , maybe more, maybe stay try to scrapebe 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've read the same articles i have. and of course, the argument is if you lead to self-induced abortion, you will find many more women 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 healthsaving purpose? mr. keller: justice breyer, about self-induced abortion, the evidence in the record on that were two points of testimony, both from mcallen where petitioners prevailed, asapplied challenges could be brought in areas for instance, if there could be shown a substantial obstacle based on travel distance, the four clinics that closed in west texas between el paso and san antonio, all those closed before the admittingprivileges requirement took effect. they were all planned parenthood facilities. in petitioner's -- justice ginsburg: keller keller -- as applied challenge is a real problem with that. because suppose you bring in that asapplied challenge and you're successful. you can't have a creation of an ambulatory surgical center on

the spot. i mean, these these once once these facilities are closed, they're closed, and they can't start up tomorrow. so how the asapplied challenge i mean, the woman's problem would be long over before this clinic, the kind of clinic they had before, could be restarted. mr. keller: 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 petitioners' first lawsuit they told this court in their application that that clinic was going to close regardless. and seven of the eight clinics that closed before the admittingprivileges requirement to the vet, and went from 41 43, seven of those eight were planned parenthood clinics. planned parenthood is complying with the law and providing that increased standard of care.

and also, the eleven clinics that closed the day that the admittingprivileges requirement took effect, when it went from 22, 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 admitting privileges. justice ginsburg: there was a stipulation there was a stipulation that is "no currentlylicensed abortion -- 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 there was for. texas stipulated that no currently licensed facility meets asc requirements, and each will be prohibited from performing abortions. mr. keller: and that would go to the asc requirement as opposed to the facial challenge of the admittingprivileges requirement. but four of the facilities that reopened four facilities reopened of those eleven when the admittingprivileges requirement went into effect. that was dallas, two at ft. worth, one in austin. 1111,s ja 131, 715, and

and 1436. two of those were ascs. now, when it comes to the count of ascs, there are nine ascs performing abortion today in texas. three opened up after house bill was passed. -- house bill two was passed. so in examining the facial challenge to that requirement, when asc's exist -- justice sotomayor: can i ask: , where they opened as 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 that they were planned to be opened. it takes quite a while to dig up the money, get the investors, buy the land, do the building. it seems to me that they must have been planned for a while. and if they were, it was because there was a need independent of the number of abortions. mr. keller: well, -- justice sotomayor: in other words, it's fortuitous that they've come into existence, but it was in their need was not there was independent of the reduced number of facilities elsewhere.

mr. keller: legislature provided months to come into compliance. in addition, you could lease space. texas has over -- there are 433 general ascs in texas at the time of trial. justice sotomayor: most of them don't choose to provide abortions. mr. keller: that's correct. of course, space could be leased in those. justice sotomayor: so what you don't know is what 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 to invest in your work? mr. keller: yeah. the point being that there are going to be at least ten clinics -- justice sotomayor: can i ask about mcallen? there was testimony in the record that at least four doctors had from that spot had asked for admitting privileges. well, 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 it had at least four people before it -- 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? mr. keller: because, justice sotomayor, that was the only named plaintiff for the as applied -- justice sotomayor: but that but the asc lawpplied, 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 privileges? mr. keller: well, that wasn't the only one of the four doctors that joined this lawsuit, because most of the doctors and clinics in texas are not part of this lawsuit justice -- justice sotomayor: but you just lift the requirement because you

know that it's the only clinic in the area. 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 ensure that women in her area are provided with their fundamental right to choose? mr. keller: justice sotomayor, it would not be an indentured situation. if there were new facts that came into being that the doctor -- justice sotomayor: but she wants to -- mr. keller: didn't perform abortion, then another doctor could bring in a future as applied challenge -- justice sotomayor: all right. justice kagan: general, could could i ask could i go back to a question that something that you said earlier? and tell me if i'm misquoting you. you said that as the law is now, under your interpretation of it, texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much

more risky medical work. and you said that that was your understanding of the law; am i right? mr. keller: correct, in this court's in simopoulos. justice kagan: and i guess i just want to know why would texas do that? [laughter] mr. keller: when there are complications from abortion that's in the record, texas can enact laws to promote safety. justice kagan: no, i know, but but the assumption of the question, and i think you haven't challenged this assumption, is that there are many procedures that are much higher risk. colonoscopies, liposuctions, we could go on and on. and 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. mr. keller: justice kagan, this bill was passed in the wake of the kermit gosnell scandal that prompted texas and many other states to reexamine their abortion regulations. justice kagan: but, of course, the i mean, texas's 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 regulation that prevents rogue outfits of like that, why it is that texas would make this choice. and you say you're allowed to make this choice, and we can argue about that. i just want to know why texas would make it. mr. keller: i think the amicus brief for the texas legislators -- 121 texas legislators that canvasses the medical evidence and canvasses statements confirms that that that there were complications that these laws do have benefits. and even the bill opponents said -- justice alito: isn't it true -- justice kagan: are you are you in 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 of regulation. mr. keller: yeah, brain surgery, for instance, just like simopoulos, would almost certainly have it it would have higher risk of complication. but the point is -- justice alito: general, as to 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 where rats could come in, the lack of any equipment to adequately sterilize instruments. is that not the case? mr. keller: stories similar to that are also raised in the texas legislators' amicus briefs. -- in the 121 texas legislator'' amicus briefs. colin buttomayor -- justice alito: these are not stories -- chief justice roberts: justice alito.

justice alito: these are, as i understand it, actual reports of of inspections of those facilities. mr. keller: the amicus briefs do discuss that, and the complications from whole woman's health were underreported to the state. justice ginsburg: random texas, under the prior law, has the right to make random inspections. was the problem in pennsylvania was this filthy clinic hadn't been looked at by anyone from the state in years. but texas can go into any one of these clinics and immediate immediately spots a violation? it says you can't operate till you come up to speed. so texas has had, as justice kagan pointed out, its own mechanism for preventing that kind of thing from happening. mr. keller: texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of -- justice sotomayor: it's valid only if it's taking care of a real problem. mr. keller: and there were the abortion complications and underreported -- justice sotomayor: well, no, no, no. a real problem, meaning, gosnell, the governor of pennsylvania, said was a regulatory failure. and only in that, not this clinic had not been inspected for years. -- 15 years.

he the doctor was fabricating his reports. that could happen almost in any setting. anyone who intends to break the law 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. mr. keller: the constitutional standard for whether a state can make abortion safer can't be that it can only prevent the gosnell situation, and there are complications. justice sotomayor: well, but yeah, but but you have to see, as justice breyer asked you earlier, why are the problems? isn't this a selfcreated problem? what happened in texas independent of gosnell that raised the gosnelllike situation

--in texas that made legislature so 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-asc facilities? mr. keller: because there are complications in abortion -- sotomayor: but there's complications in colonoscopies, and colonoscopies are, what, 28, justice breyer just corrected me. [laughter] 28% higher. i mean -- mr. keller: but legislatures react to topics that are of public concern. in gonzales, the court noted after dr. haskell's procedure for partial birth abortion became more of a nationwide concern, states reacted. when the legislature sees that there's a problem, and maybe that there wouldn't rise to the same level of a gosnell problem, but the legislature can still act to make abortion safer, which is precisely what texas did here. if i can address my friend's contention of the record as to what clinics closed preemptively. there is evidence in the record that killeen, mccallen and el

paso, three clinics, closed preemptively. they brought asapplied challenges in mccallen and prevailed. they brought their asapplied challenge in el paso and did not prevail. and the killeen clinic did not seek asapplied relief. indeed, if there are any future concerns, asapplied challenges can be raised. for instance, the wide swath of area in west texas that does not have an abortion clinic today, there was no asapplied relief sought in this case. and if there were if it would turn out that there were going to be an issue in that area, a future asapplied challenge could address that concern. justice ginsburg: well, that's the problem. once a clinic closes you said mccallen reopened, but that was very swift. once a clinic closes, equipment 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 asapplied challenge. mr. keller: mr. chief justice, my time has expired, if may address it. chief justice roberts: sure.

mr. keller: except even there, the clinic was not just closed for a single day. it was closed for a longer period of time. and there was an el paso clinic that actually reopened also months later. so an asapplied challenge could allow a clinic, if an undue burden, if a substantial obstacle were shown because of driving distances or capacity in the future, in that discrete instance, but we're in this facial challenge posture, petitioner's bear the heavy burden to show at least a large -- justice sotomayor: why isn't self-evident in that area -- justice kennedy: sonia is off. justice sotomayor: this area of western texas, it's as big as california. no? bigger? mr. keller: i'm not sure about california, but it certainly is a large size. justice sotomayor: huge area. mr. keller: absolutely. justice sotomayor: why isn't it self-evident if you have a law that says you can only be an asc provider, and who's going to come in and say, i can't be an asc provider, but it's an undue burden on me, or it's an undue burden that's selfevident on the

women in that area? mr. keller: well, the right is possessed by the women. the clinics and doctors can bring challenges. justice sotomayor: exactly. so why don't we take this lawsuit as those women saying just that? mr. keller: because there was -- justice sotomayor: you 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. mr. keller: planned parenthood had four clinics in west texas. they all closed before any part of hb was actually put into effect. they could have brought an asapplied challenge. they didn't. planned parenthood did not join this lawsuit. they were part of the first lawsuit. and indeed, the facial challenges here are barred by res judicata and there are significant record gaps. justice ginsburg: may i ask you one question? you earlier in your argument, you were quoting how many women are within a reasonable range of the clinic. 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 there is and the district

court said, you know, this is not a problem for women who have means to travel, that those women will have access to abortion, anyway. so in texas or out of texas. so casey was quite precise in this, when it's talking about husbands and notification. you don't look to all the women who are getting abortions. you look only to the to the the women for whom this is a problem. and so the only women we would be looking at is not all of the women who are 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 is

regulating women, as it would in the spousalnotification provision, that might be different. but when we're talking about doctor and clinic regulations, when the law is 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 that was the proper denominator, all women of texas reproductive age. and petitioners have not challenged that denominator holding in their opening brief. justice ginsburg: 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 sought as the starting premise. and then this is certainly about casey -- casey made that plain, that it the focus is on the woman, and it has to be on the segment of women who are affected. mr. keller: yes. and and the right held by women to make that ultimate decision is not burdened in, at a minimum, a large fraction of cases in texas, when each metropolitan area will still have a clinic, even after the law goes into effect, and future asapplied challenges could address any possible concerns about west texas or otherwise. chief justice roberts: thank

you, counsel. mr. keller: thank you, mr. chief justice. chief justice roberts: ms. toti, you have five minutes remaining. ms. toti: thank you. a few brief points. first, the record cites from earlier, evidence that hb two caused clinics to close in texas. the plaintiffs testified that hb two caused clinics in killeen, austin, beaumont, mcallen, and el paso to close, and that ja 339, 715,that 722, and 731. respondents stipulated at ja and -- ja 183 and 184, that the asc requirement would cause any licensed abortion facility still operating on the day it took effect to close. pagetiff's exhibit 28 at two, 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 hb two, the number of abortion clinics in texas remained fairly constant.

finally, at ja 229 and 1430, there is, at 229, testimony from dr. grossman, and at , our 439, our response to the fifth circuit's directive showing that 11 clinics closed on the day that the admittingprivileges -- chief justice roberts: and that that's the book? the last evidence was from dr. grossman? at page 232 he said "i am not , here offering any opinion on the cause of the decline in the number of abortion facilities." ms. toti: that's correct. dr. grossman did not offer an opinion on that. but his testimony supplies the fact, from which the district court drew the inference, that clinics closed on the day that the state first enforced the admittingprivileges 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 abortion -- justice sotomayor: can you tell me why planned parenthood left the western area? the general says that planned parenthood

that asc and the and the admitting privileges had nothing to do with the closures in the western area of texas. ms. toti: well, the the two clinics in el paso, which is in in in that western region of texas that would be forced to close as a result of these requirements, are not operated by planned parenthood. planned parenthood doesn't have any clinics in texas. the plaintiff in this case and another independent provider operate those clinics. justice alito: and as to the the clinics where there is direct evidence, does the direct evidence show whether the cause was the admittingprivileges requirement or the asc requirement or both? -- itti: with respect does specify. and some specify the admittingprivileges requirement, and some specify the asc requirement. and some specify both. so with respect to whether abortion can be regulated differently than other medical procedures, abortion can certainly be treated differently, if there is a

reason to treat it differently. but texas may not impose unnecessary medical regulations that burden women's access to abortion. in simopoulos, the court found that the regulations of secondtrimester 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 requirements are not medically justified. they are not consistent with prevailing medical standards, and their amicus briefs from leading medical associations, including the ama and acog, confirming that. justice alito: do you think that federal district judges or this court is well qualified to determine whether there is a different risk, regard with respect to abortion, as compared to other procedures, that may or may not have to be required may or may not have to be performed in an in an asc? ms. toti: 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's 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 surgical 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 regulations. chief justice roberts: thank you, counsel. ms. toti: thank you. chief justice roberts: the case is submitted. monday, on the communicators. we examined the 1996 telecommunications act with two of the chief authors. the former chair the house energy and house subcommittee, and massachusetts democratic senator edward markey. discussof them will whether the act is outdated, and should be rewritten. >> words like google and hulu, and youtube are part of the culture today. they were impossible to be created before the act. we got a lot right, nothing is perfect. but one thing we did do was remove not only -- we moved not only our own country, but the world from analog to digital. >> our goal was to take away the

lines of demarcation that prevented competition. and by unleashing the competitive forces, he created the investment that was needed to bring us to this world today. >> watch the communicators, monday night at 8:00 eastern on c-span two. [applause] we arey election, reminded how important it is for citizens to be informed. >> c-span is a help for political junkies, and a way to track elections as it happens. >> there are a lot of c-span fans on the hill. my colleagues are going to say, i saw you on seas. -- c-span. >> there so much more c-span does to make sure people know what is going on. >> announcer: next, q&a with robert kaplan.

then, david cameron takes questions from the house of commons. after that, i discussion on the life of nancy reagan. ♪ week, robert kaplan. he discusses his book, in europe's shadow: two cold wars and a thirty-year journey through romania and beyond. robert kaplan and your new book -- you started by talking about books. why? robert: i think the ultimate goal of travel is to create a geography. beautiful landscapes and treating l