u.s. president devotes a fair amount of time to making sure the secretary general of nato is recognized almost at head of state level and is as important an ally as any single country. the nato secretary-general walks into the oval office. he brings the voice of 27 sovereign countries. that is important. how we react to that is also very important. summit will this see a reassertion of u.s. firm commitment to not only supporting and leading the alliance and also making sure members live up to what they have agreed to do. finally, the nato/e.u. has always been slightly uncomfortable. we have never really figured out how those organizations coexist. mostly at the political level.

this is not a military problem. militaries know how to solve this problem extremely well. it remains to see if it is politically acceptable. we cannot afford to have two separate militaries and two separate hierarchies of those militaries. we have proven that in the balkans. i think militarily it could be proven again. i would say especially at this time, very important for the united states leadership and nato and e.u. to come together and figure this out once and for all. i think it is possible. those would be the points i would make by way of opening bid. dr. farkas: that is great. i will leave out the names. but well before the whales summit, a very high-ranking nato official said to a very high-ranking u.s. official, deterrence before dialogue. it was interesting was

transatlantic unity on that at least among these individuals. we are seeing that now come to fruition. what i'm going to do is ask a macro question and you can share -- cherry pick a little bit from the macro question in the interest of saving time and getting a few other things into discussion, which the audience can pick up on if they like. it is clear if you had to take these 10 recommendations, the two most important are leadership and being proactive. if you have those two elements, you can take care of the other eight. there are a couple of other items. cannot fit everything into one report. you did touch on some of these in your comments. there are three other areas where i think we want to think about how we can use leadership and be proactive. one has to do with expansion. if i were to make a recommendation to the heads of state going into the warsaw

summit, i would say make a big deal about the fact that you are expanding. damon said this before. insecure institutions don't expand. they don't allow the members if they are feeling insecure. i think the fact that montenegro is being admitted to nato, while it is a small country and is not going to contribute phenomenally to nato's defense, it will contribute to its own defense and has been contribute all along to nato operations in afghanistan and elsewhere. i think the question of expansion is important because right now you mentioned the dialogue, the russians pushing back. they are pushing back also on nato expansion saying this is a move against russia, countering russia. in reality, and both of you know well because you live through this, nato was actually aimed at spreading security and stability throughout europe.

as such, it is unfinished business for nato. if you would like to comment on that, it would be useful. i think we still have quieter aspirin, if you have a message for them. the other element touched on in the report but could be fle shed out is the issue of unconventional warfare, little green men or demonstrators. that is where the e.u. comes into play. if you have anything that requires law enforcement and strategic medications, those are areas nato does not have competency and and would have to work closely with the e.u. on. i believe in warsaw they will make a statement about that. i would be interested whether either of you have comments on what more we could do in that area working with the e.u. general, you mentioned being proactive in the middle east and africa. and you mentioned the refugees. hanging over all of us is the catastrophe that is syria, the

cause of the refugee flow. is there something nato could or should be doing? those are my three big ideas. you can pick and choose as you like. ambassador, i will start with you. amb. burns, ret.: in one minute or less? some are better for jim as a military leader to answer. let me say a couple of things. first, it was striking to be in europe last week. damon and i went to brussels to present this report and went to berlin to do the same thing. the europeans, some of them, are quite reluctant to be too truculent with president putin. the bumper sticker that will emerge on russia is deterrence and dialogue. many of the europeans were advising us that you americans need to believe in those equally. my response is i don't think so.

i don't worry about dialogue with the russian federation. secretary john kerry is on the phone constantly. there is no absence of discussion between the u.s. and russia. ofre is an absence productive work on behalf of the russian federation. one thing i learned as a inlomat is you often succeed diplomacy when your position is strong strategically. deterrence, moving troops into the baltic states, moving troops -- and by the way, these are very modest levels. what to show president putin we will be true to our article five commitment to protect these countries should that be necessary, that is vital. if he believes we are powerful and unafraid to exercise that power, he will be much more likely to engage in productive dialogue. my advice to our german friends thethey are both important,

tories and dialogue, but deterrence at this stage given what putin has just done, is much more important. we need to stand up to putin, and i hope that will be the message from warsaw. veryd, there is a aggressive russian propaganda campaign, well financed, across europe trying to insinuate it is the united states that has caused the problems presently in europe, not russia. i was personally dismayed when saiderman foreign minister publicly a week ago saturday that nato exercises in the baltic states were saber rattling. that is exactly what the russians want the european public to believe. fortunately, angela merkel came out on wednesday and said she supported these exercises and for themany should first time for together a plan to get to 2% of gdp on german

defense spending in the future, which was a very welcome message . saber rattling, to accuse the nato allies of protecting their own territory is not saber rattling. saber rattling and more was the invasion of crimea and invasion of georgia. #futurenato antinuclear --dr. farkas: antinuclear saber rattling. amb. burns, ret.: it has withdrawn from the treaty and is not respecting the core of the arms agreements we negotiated in the 1980's, 1990's, and after 2001, to try to secure europe. russia walked away from it. the united states has not walked away from any commitments. cleark we have to be about what the problem is. we may have witnessed in germany the opening of the german elections in 2017.

my german friends kept telling me he only said that because of the elections. i said but you don't want to play into russian hands. it is very important americans have enough self-confidence to be clear about what we are trying to do is protect security in europe, our own vital interests, and those of the europeans. montenegro will come in, a very positive development. positive in tangible terms for them, symbolic terms for the rest of us. we have always been an open alliance of democracies. we never said this. but underwriting, underlining nato history is the repudiation of yalta. we are not going to trade one country's future over their heads with the russians. we are not going to do that on georgia. we should not do it on ukraine. since the end of the cold war, i

think all of us in every administration have believed every european nation should get to choose, have the right to choose its future. nato enlargement was demand driven. a lot of us in this room worked on this together in the clinton administration, the george w. bush administration, and obama administration. these countries of central europe wanted to be part of the e.u. and part of nato and we were happy to take them in. we filled that security void in central europe left after the collapse of the warsaw pact. imagine where we would be today had we not expanded nato into the baltic states. i think president putin would have his forces right up on the river separating estonia and russia if not over the river. those states would be threatened. , a veryry important important decision by three american presidents, democrat and republican, to do this.

i know a lot of people want to blame us. if we not had expended nato, putin would not be putin. i don't believe that. we should be proud of what we have created and strengthen it. that is the opportunity president obama has. dr. farkas: thank you. general? gen. jones, usmc, ret.: i completely agree with the last statement with regard to the , whont russian president in 2009 informed our president at a breakfast in moscow there was an agreement that nato would never expand and taken to its membership any of the former warsaw pact countries. that we violated that agreement. we have been looking for the agreement. [laughter] gen. jones, usmc, ret.: somehow it is hard to find. somebody lost it. there was no such agreement. it is interesting the president of russia deeply believes there

was such an agreement. issue whencates the you don't look at history the same way. onenlargement, i think thing nato might consider is to look at the enlargement and partnership program because they are all kind of want together now -- lumped together and i think they are vastly different things. i think it is for the alliance to determine when a new member is eligible and has met the requirements for membership. in my book, new members should bring value to the alliance. not problems that value. and we should have common values. when nato decides to do that, we should do that. on the partnership program started years ago, i think this is a potential for enormous influence. while people are waiting to become members, and that is

their choice, the possibility of expanding the partnership programand membership for that aspect is off the page. it ought not to be limited to just european countries. i would suggest it may be possible to reach out to moderate arab states, even african countries, even countries in the far east who want to have interoperability with nato and common tactics, training, and procedures to respond when needed across the board on humanitarian missions to other kinds of missions. i think it is important to do that. when you think about the middle east, you think about a collection of countries that have common language, generally common religion, common values, common culture. couldnd of wonder if nato

be an interesting example for them to follow as an organization. nato could be very helpful in helping arab states develop their own kind of security treaty organizations. i am for enlargement. i am also for taking a look at the partnership for peace program. question, it is a very interesting question. it is one we have not addressed very well. this is where i think nato and the e.u. could work together because part of the missioning in that type of warfare would be definitely in the e.u.'s wheelhouse. this is something we should work on. i think nato ought not to be impervious to cyber security

threats and energy security and even economic security. that should be part of the dialogue. one of the responses i think would be very meaningful and certainly send a message to the russian president is the construction of a north/south corridor from the baltics to the adriatic for transportation, telecommunications, and energy. this is not a pie-in-the-sky dream. this is actually ongoing in the dialogue in the e.u. and washington with very favorable support. 13 to 14es free different countries and reducing their dependents on russian energy, for example. this would be a long-term consequence to mr. putin's actions in the ukraine and crimea which i think are well worth considering.

this is a hybrid type of response to russian aggression in those areas. i think it would have tremendous impact on russian thinking in terms of doing it elsewhere. i actuallyon syria, a few years ago we might have had an opportunity to perhaps forestall certainly the tremendous migration problems that are now square -- being squarely faced by the europeans. that is by borrowing a page from operation provide comfort in northern iraq in 1991. had we been more forceful in enforcing the redline, i think we could have created, along with our nato partners and moderate arab states, a

humanitarian zone, no-fly zone, whatever you want to call it, as a consequence to president assad's use of chemical weapons on his own people. i think you could have had a safe zone for refugees and could have taken a significant chunk of syria and with the military the araby of nato and states and the united states, i think you could have forestalled the immigration -- migration problem we have had. who knows what could have happened. i am not sure it is off the page completely. i know there are different views about that. dr. farkas: you preempted the. is it possible today? gen. jones, usmc, ret.: it is more complicated because of the russian presence. then, there was no russian presence. i would not completely dismiss it. thank you. amb. burns, ret.: i think it is hard to envision nato as a whole

going into syria simply because we operate by consensus. each of the 28th allies would have to agree, which is not going to happen. what if the humanitarian situation worsens, think of the data point at the beginning of the war and april of 2011. the u.n. thought there were about 22.5 million syrian citizens. over 12 million are now homeless. 7 million inside the country. 5 million outside the country. ,hould that situation worsen assad now says he wants to reclaim the rest of the country. violating the reassurances it gave other countries, the humanitarian imperative demands we ask what we can do. we don't want to put a big american land army there. we've learned our lesson from iraq. but do we have a humanitarian obligation to create -- help

create humanitarian corridors? how do you help the refugees who are starving? there are two possible places for a safe zone. i don't think we should give up on that idea. it is two minutes the complicated. there are 80 million reasons not to do it. if that 12 the number becomes 14 million, you get into the situation we were in bosnia. you have to act. you have to challenge the russians to help us. that ought to be the first call. let's see what they say, see how cynical they are about all those lights he lost in syria. we cannot stop talking about it. dr. farkas: i agree 100%. it has been my feeling for a while having worked in bosnia after the war and studied and written about it. and of course, you are both actively engaged in diplomacy and in your military careers at the time, so you know what it

looked like in 1994-95. i think we are exactly there with syria. even if you don't know how you will resolve the conflict, you still have a responsibility to do something to alleviate the suffering. we did have a safe zones which did not work. i should not say they did not work. they did not work in every case. been incredibly informative, dynamic i think. i don't know whether it is spicy yet. you have a chance to make it more interesting. i think there are probably people out there with microphones. i will call on folks. i will try to be democratic. i will take right here from the front. get ready on that side of the room. >> jim cunningham, atlantic council. thank you for the report and recommendations.

in order to try to be a little bit provocative, given the events of the last couple of years in the european union and difficulties given the fact we have an administration that only has eight months left in office and the british having now decided to withdraw and all of the effects that will have in the european union and in nato, because they may be separate organizations, but they are not separate entities. and given the fundamental question, do we have shared values and a shared view of what our way of life is? that is certainly underlying part of the debate in the united states and u.k. in europe. east and west and north and south among alliance members. do you think it is possible to restore the power and purpose of the alliance? that is exactly the right question. dr. farkas:.

thank you amb. burns, ret.: jim cunningham was our great american diplomat and most recently our ambassador to afghanistan. us out of our report. it urges the alliance to stay in afghanistan. i know you feel deeply about that. when damon and i met with the secretary-general last tuesday, he assured us nato was staying in. the defense ministers had taken that position the week before. i think you put your finger on the central issue about nato. we are many things. we are a military organization print we are a political alliance. we are bound together by shared, democratic values. that is who we are. we don't invite countries in who are not democratic. if you look at the end of the executive summary, we are concerned about some of the populism, nativism, right-wing

nationalism occurring in europe. look atviktor orban, wit questions people have over the new polish government. we have some of that going on in our country. nativism, populism, in a person of donald trump. dr. farkas: i'm comfortable with you speaking for me. [laughter] amb. burns, ret.: there is a candidate for the presidency who questions whether the united states should continue to be in nato, who has threatened nato allies if they don't pay up, he will walk out on them. i think the answer to your question is we need presidential leadership. we have always needed american presidential leadership. we are the outsized country in that alliance. we are up to 75% of the defense spending. we would like to reduce that ratio and have the europeans contribute more. i think president obama in the wake of the brexit vote has a responsibility but also an opportunity for him and the united states to show our faith

in nato. and to show our faith in the united kingdom, and to show our faith in a stronger leadership role for germany. having looked at this over the last several months and working through the report belie we need a stronger germany, stronger militarily, stronger politically. i would say angela is probably the most respected leader of all the great powers right now. the relationship between the american president any german chancellor with the bridges the british exiting, the european union become central to everything the united states needs to do in europe. i admire president obama very much. i hope he can give that ringing speech, declaration at nato of american commitment. if there are any doubts in our country, trump may be in a minority of one, that nato, then the president can speak to that.

i'm proud to say hillary clinton is definitely standing up for the nato alliance. gen. jones, usmc, ret.: i would add one caveat to that. it is not only about paying your way. you should do what you agreed to do. there is no doubt about that. publichink the american to be theer willing who didn't majority of the fighting and dying in these missions -- do the majority of the fighting and dying in these missions. they will have to step up in combat roles. a lot of them do. dr. farkas: even partners like georgia. gen. jones, usmc, ret.: exactly. a lot of them do. but it would be much better if everyone did.

difficulties of a 28-nation, maybe 30 in the near future, one of the big challenges is getting everybody to agree to the same thing. i think you are going to have to have a more agile voting capability before some allies want to do things and others want to sit it out like we did in libya. i think you're going to have to have that agility. unanimity, iton is going to be very difficult. but i do think it is fair to say some of our allies need to not only step up financially, but also step up to the troop commitment to do the hard work. dr. farkas: we have a question from this side of the room. we will start with the gentleman here. i promise i will go to the back and be democratic. >> my question is, what could to help thiskraine

country become closer to the western alliance and what ukraine should do to become closer? thank you. gen. jones, usmc, ret.: go ahead, ambassador. [laughter] amb. burns, ret.: and then over to you. we both wore our nato ties today. i think one of the big policy questions for the united states and nato is the extent of our support for ukraine. ukraine has very sound political support from the nato alliance about what happened to it, the dismemberment of its own country. annexing crimea is crossing the brightest redline in the u.n. charter. i think they felt the political support with a have not felt the military support. i believe we should provide legal assistance to ukraine. i think ukraine deserves that and they have a right to defend their country. but that is a policy question that president oba has

answered in the negative on that. we will have to continue to debate that in our country. on ukraine in nato, we have been partners for a long time. we have had a formal relationship going all the way back to before joe and i arrived at nato in the last decade. toaine had a long way to go be considered for membership in nato because of the territorial divisions, the corruption, because of some of the lapses in democracy. we don't call in this report for ukraine to be admitted next month to nato. but i certainly believe what all of our presidents have believed, and that is ukraine has the right to think about a future with nato, to work towards that future. the timeline, who knows? it depends on events in ukraine itself. let me finish by going back to a point i made earlier. it is important signal to the russian federation that russia has no veto over who joins nato.

even if russia invades countries, that will not stop nato countries from working with them and having a relationship which could or could not turn into membership. a lot will depend on the ukrainians themselves and whether ukraine can build a fully fledged democracy. let's hope that it can. dr. farkas: do you want to add anything, general? i think ukrainian government has passed a lot of good legislation lately. the question now will be on information. i am feeling bullish this week. back of the room. it is hard for me to see. i will go the furthest back on the right with two fingers up. nick, i think many of us in this room remember a time when the slogan in this town about was out of business.

i wonder whether we allowed ourselves to be distracted, whether it was that kind of thinking that led us to pull our major land forces out of germany, that were not central to article five. i wonder if we have to be careful about making that mistake, that nato not be the tool for dealing with migration issues, that we need to be careful about nato's training missions, about expanding the role of nato in the middle east. i wonder if when he to focus on nato as a self-defense organization focused on europe. s: i notice we have only about 15 minutes left, so i am going to until these with my colleagues. these going to bundle with my colleagues. margaret? hour."et: with a pbs "news

that they will lose a vigorous friend in the eu if it goes forward, how do you feel that if, at all, it would affect britain's role in nato, and in particular, how muscular a partner it has been for the u.s., not only militarily, but just a viewpoint. : and when on this side, the gentleman. >> just to follow-up up on margaret's point, could you in the general -- could you envision something like a joint policy planning council, in order to consider threats of two european allies that could be dealt with by both institutions, since 22 out of 28 members and members of both? farkas: ok, let's take those

three. in thent to salute bob first decade, and bob asked the first question. bob, i agree. what i found implicit in your question, we are not back to the cold war, but we are not -- a tin,ivision of europe by pu and if our core responsibility in nato is to respect the people and the people's in the alliance, then we have the primary goal -- it has to be effective deterrence against russia going forward, and as you imply, that means we cannot do everything, and we cannot be in every mission around the world. you have to choose. i would say that we made the right decision to go into austria in september or october war,95, and we stopped the

and we did not lose a single andier in a combat death, the general was a huge part of that, and then we made the decision to go into kosovo to the the annihilation of population by milosevic, so i am proud of those that nato undertook, and, frankly, i think we were right to put nato in afghanistan as a collective mission in august 2003, when we deployed, and we believe in this report that we should stay there. it is a longer subject. margaret, to your question, the big loss if britain is permanently out, and even if written splinters and weakens and is consumed by internal angst, the big loss would be written's voice in the eu, because we tend to share a common strategic outlook with britain, but you are right to focus on nader. better --m will be a

a country willing to deploy in willing to fight, the british certainly have done that in afghanistan as well as iraq, so we really do need a strong britain in nato, and given some of the -- we argue everything, and we operate by consensus, and sometimes we argue for years. britain is a voice of reason and strength, and we need that voice in nato, i think, going forward, and jim has been ringing the village bell on nato and the eu, and he ought to. there ought to be a joint council between nato and the eu that would bring the united states and institutional linkage, which we desperately britisha time when the may be withdrawing. dr. farkas: general?

gen. jones: the rise of terrorism and entire countries that could be overtaken by that kind of an ideology, if we can afford to have a nato that is just sitting, waiting for something to happen with the borders of nature. i just do not think that is -- is going to be a main contractor to our collective security. i think while you cannot do everything, there are certain events that are coming toward us that mandate that we pay attention to them, unless we want to have another afghanistan me,nother iraq, so to proactive consideration is

, ander and more effective it is a big training mission, really, with partners and allies , but you could prevent any number of countries from being overwhelmed by radical ideologies that seek to transform their societies against us, by the way. we are the collective bad guys here for all of this radical fundamentalism that is going on, so i think they should be engaged, and i think they should is lessed in a way that expensive and would yield better results. you're not going to have economic develop it and freedom of governments and will of law unless you have security, and nato is the 10 security organization there is, and it should be emulated. it should because we'd. it should be admired, and we

should expand it. -- i think we should duplicate it. one of the most powerful militaries there are, i think their role will continue. i would like to see the u.k. and get up a little bit up to the percentage and definitely not go below it, but i think they have a very important role. i think maybe even more so now with this >> it -- this brexit. basic to the ukrainian troops right now, which is really the number one thing we are giving ukraine these of the russia. vis a vis russia. jones: this is to help them

seal their borders, to help them defend themselves, to help them train their military, to have a function under civilian , and i think you would avoid many future conflicts by being there a little bit earlier. farkas: ok, let's take down the isle there, and i would do again, the three of them, so on the aisle, over here, and over here. timothy: i am timothy, a retired u.s. ambassador and a colleague 31 years in the state department. i think this is fabulous and that it is important that these ambassadors and news men get the word out, because it is very important to nature. my question is for my friend nick.

you listed three or else you are things that are vital, and three of them get the attention of everybody, racy things like exercises, stationing permanent troops in sovereign countries over there. i can hear the, music, but then you talked about sanctions. well, that gets pushed back on the business section of "the new york times" sometimes. people ignore it. i wonder if you and everybody else here -- you talked about those business as usual, pro-russian types. you mentioned donald trump. i wasn't, but you mentioned, so i will, and three weeks ago, xit, and asked about bre he said, what is that? i will get back to you. and then he is over there in scotland, saying this is the end of the world.

why don't we push the sanctions bit and point out this new wizard, what is his name, is a lawyer who does business in russia and loves putin. the rest of us have to register as foreign agents because we are not lawyers, and they can run around down here without registering. 12 --n't you go after the trump crowd? farkas: thank you. that was a very spicy question. over there. afternoon, the atlantic council. the question is region specific. have a mission and a coordination in the baltic region. what about the black sea? sea, you have

disparate militaries, disparate countries, romania, bulgaria, and turkey as nato members, and you have georgia and ukraine as potential nato allies but not currently members. what kind of coordinating structure would you recommend to create, and maybe as a , for the nato summit? because otherwise, it is not clear to me how do you coordinate the air, sea, and that, and whatf timeframe you would be looking at implement that. thank you very much. farkas: i do not know if it was he or elsewhere, but he talked about the security initiative, so i think you are continuing towards that. ok. a third question. over here. sorry. this will be, i think, our

last question, because we need time. from the hudson institute. my question is with the number of active military declining, 400,000, 500,000, and with the pivot to asia well underway, how can the united states reassure our european allies without becoming overextended in multiple regions around the world? how can we balance our priorities while still deterring russia, especially when they look at 100,000 troops. farkas: ambassador? mr. bur we don high likes this in: our report. it is one of the recommendations, that we be tough-minded about maintaining the sanctions on the russian

federation. obviously, chancellor merkel and others may be correct decision putin went into ukraine and not to fight. they are not a member. we had no article five with them, and we do not want a war. response,ions was the and now we see at least three european union are -- leaders imply or state that they think it is time to end the sanctions utin has met any of the sanctions. it would be giving a victory to putin and leaving him towards aggrandizement, and i am quite confident the obama administration is going to hold the line on this, and from what i heard in germany last week, chancellor merkel is going to roll that, but everyone has to agree to pitch the sanctions

forward to continue them, so it is going to be a real battle forward, and smacked in the middle of our presidential transition, and as private citizens, we advised some of these europeans do not challenge the united states during a transition. do not challenge our outgoing president or our incoming president and do the right thing and support the sanctions. i certainly do not want to see us cut the defense budget. i think the pivot, the rebalancing to asia is the right idea, and president obama is right to build up american resources in guam and the air base and in australia and south korea. it was impressive to see the carriers go through international waters in the south china sea last week. it makes a big statement, but you have to have a healthy defense budget to do it. we are big enough.

we are wealthy enough, and we are a global leader, so in rebalancing to asia, there is no contradiction in pivoting back to europe. we hollowed out our military in europe to fight the afghan and iraq wars, and i very strongly support what -- carter has done to convince congress that he can use defense funds to rebuild the american military in poland, the baltic states, and on our basis -- bases in europe. we need to do that if we will have a strategic advantages with putin and not just have a one off, to put it into the regular budget so we can have a regular military presence in europe, which is very welcomed by the europeans, by the way. jones: there is an expression that virtual presence is absence. if you want to be a superpower call you have to be a

superpower, and you cannot pick and choose where you want to be a superpower. there is all this discussion about pivoting and rebalancing and all of this other stuff. restating the obvious, in my view. i think most americans really want this country to have the terms of of primacy in what goes on in the globe in 2050 as we did in 1950, and if that is the case, then withdrawing from the world or withdrawn from regions will create vacuums, and vacuums are filled by people who do not have your best interests at heart. recently in that the middle east and with russia. we have seen it in different other places, as well. the next administration is going to have to get on board fully with where is it you want to take this country, and where do you want this country to be, and

places like the black sea are important, and they are important not only militarily and strategically. they are important economically, and one of the things that i have noticed is that there is a different dialogue when you talk to eastern europeans these days and western europeans. western europeans seem to be to forgive andng find a reason to say, well, they did not say it, or they did not mean it, and we shouldn't do the sanctions, but in eastern europe, you do not get that at all. fromaving just come back romania, i was very pleased to discover on my arrival there that 700 u.s. marines were basesng on the romanian that we got them to modernize back in 2006 when we were in nato together. the same in bulgaria, so if you go to those countries, and you

talk about how serious they think the threat is, you get the the kind of rhetoric that germans and the british and the french were talking about in 1950 when there was a cold war, so the united states, i think, ,ind itself as a global power not focused only on an east/west strategy, which is dominated our thinking for the last 70 years or so, but also having to think about new realities in our own hemisphere and also the rise of the african cotton that is a reality that is going to be upon , and so, weu think have to be engaged as a global power, and we cannot withdraw. it is in our own national interests, not because we are magnanimous and want to do good things all over the world, but

it is in our own national interest to be able to do that, and it is our inheritance, really, from the 20th century, but it is a different world, and we have to organize ourselves differently. we have to be more agile. i have talked about the national and in a sensel, that we need a 24-hour security council. we cannot afford to go to sleep, because the next day, you go to work, and you are dealing with everything that happened there he was six or seven hours you caught up on your sleep, so this is a different world. it is a different century. the institutions that were organized for the cold war are having a difficult time reacting and meeting the variety of the challenges that are economic, energy. military, and the

state actors and the whole bit, so -- i think we need to figure out how to do this. it is easier dealing with regions than single countries. you can understand the world a lot better when you think regionally. i believe with the unified command that we have, which is another inheritance from the 20th century, that we could have regional strategies with regional representation by the whole of government and the foreign-based and in different regions, and i think you can engage much more successfully there.

ands a very serious issue, i hope the summit deals with it. kas: thank you very much free have gone very proactively beyond nato into the regional combat and commands. i think this is been a very engaging discussion. the report is proactive. we are trying to keep it spicy. let's go on the road and do more of it. you gentlemen think of doing more tb and op-ed -- more tv and op-eds, and i want to thank you for your service, and hopefully we can keep you talking about all of these issues, so please join me in a round of applause. [applause] [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its

caption content and accuracy. visit ncicap.org] atouncer: we will be back the atlantic council this afternoon at 4:30 p.m. eastern on u.s./mexican relations. we hear from officials from the george w. bush and obama administrations. that will be here live on c-span. pictures on the screen earlier today from the supreme court, which today issued its final decision of the term. in one case, former virginia charges bob donald's were overturned. he was accused of taking bribes for access. ruled unanimously that he deserves a new trial. they have to prove you took formal action on a pending

matter, and striking down a law for doctors and abortion clinics to have admitting privileges at a nearby hospital for hospital like laws. after that, many clinics in texas were forced to close. afterwards, rumpled sides of the issues, they spoke to reporters. we will hear first from one side. [cheers] nancy: good morning. i am president for the center of reproductive rights. [cheers]

nancy: we are the women who represented health in the supreme court decision today. today, women across america have had their constitutional rights vindicated. [cheers] northrup: the supreme court has sent a clear message to the tactics of politicians who use underhanded means to shut down abortion clinics. now, hold women's health and the other clinics in the state of texas will remain open. [cheers] northrup: and it is a possibility that other clinics can now open to represent women in so many underrepresented parts in the state. [cheers] northrup: without decision, today's supreme court decision is a game changer. in the unrelenting assault on

women's health and rights that has been going on in state legislatures for years. this is a tremendous victory. and we will go forward and lawsg sure that all of the that are blocking women's access to the constitutional rights will be overturned. [cheers] northup: we will not stop fighting, and we are here today because of whole women's health and other clinics in this lawsuit took the brave step four to say to the state of texas, enough is enough, and because of that, we are here with this stupendous reinvigoration and this reaffirmation of the promise of roe versus wade for future generations, and i now present to you amy miller. [cheers]

ms. m i am beyondiller: --ms. ander: i am beyond elated, with this historic ruling, justice has been served in our clinic that can stay open. after years of fighting part with anti-choice politicians who would seemingly stop at nothing to put abortion out of reach, i want everybody to understand, you do not mess with texas women. [cheers] miller: you do not mess with whole women's health, and you do not with this passionate, heartfelt movement of people committed to reproductive health right.

three years ago, texas hb2, acians passed repressive law aimed at women who have decided to end a pregnancy and those of us here to help them. with no legitimate medical justification, politicians forced abortion providers to completely restructure our clinics. more than half of the texas abortion clinics to close, including several of my own. these closures have put a staggering burden on texas women. politicians of forced women seeking abortion to go to clinics that are farther away, to get childcare, to take multiple days off work, and to pay for transportation or hundreds of miles. process ofhe obtaining safe, legal health care has become an onerous, grilling, or flat-out just impossible. i hold in my heart those women were forced too

forgo care as a result of texas law. today's decision marks a turnaround for texas and for our clear., but let me be a wind does not meet our struggle is clear. first, clinics do not reopen overnight. we have a daunting task ahead of us to determine when and how to reopen our health centers that were forced to shut their doors over the past several years. renewing leases, hiring staff, and working with the communities we previously served to help us reopen for care, and reckoned, this decision only addresses two of the many, many restrictions that women face to get abortion care in texas. now, we must redouble our efforts to end a similar restrictions across the state, which push abortion out of reach for so many women. it is time to pass correct of state laws so women have access to quality clinics in their community, can afford abortion, and do not face shame or stigma

when she seeks that care. [cheers] day one, wholem health faught that premise, and we fought back, and we have struggled every day since then against anti-choice regressive politics in our opposition's best efforts to shut us down, and we won. [cheers] miller: today, we make history, in tomorrow, we get back to work so that every woman who seeks abortion services and get the care she deserves with the dignity and respect we all deserve. [cheers] ya.miller: -- yay. reopeningficulty in -- all of us: so i think across the state and in the

south in particular would like to be able to contribute to restrict access throughout the state of texas. it is a complicated process. most of us have had to let our leases go. we had to let our buildings go. our doctors to other jobs, and the licenses. this is a process we're going to undertake, but it is going to be very complicated, and it is not going to happen right away. this is why we have to fight things like this in the first place, because before, we had clinics to provide those services. the decision was extremely powerful, actually. it was delightful. northup: it was a complete vindication. the facts are there. this law was passed with the intent to shut down clinics. it had that devastating affect,

and we are very pleased that the supreme court could see what was happening and make clear -- and this is going to make a difference. there are cases and cases across the nation where we have been attacking these kind of underhanded laws, and today's victory is going to make a huge difference in being able to push this that, and we hope that politicians who have been passing these underhanded laws will start to do the responsible thing and let women have their health right in there's date. in their state. ms. miller: there was some gasping, some handholding, and a lot of filing. >> what message?

>> i think the 5-3 decision is that they agreed with the court and the clear evidence that you cannot use sham justifications to take women's rights away, and it was so clear that justice breyer, in summarizing his opinion, mentioned it, and we are just delighted. thank you. ms. miller: thank you. [cheers] >> babies lost, and their mothers lost. unfortunately, the supreme court sided with them. today as members of the pro-life movement saying we will not give up. if anything, we are more resolute. is about election hundreds of lower court justices and 5000 appointees to our government. we as the pro-life community must vote. this is a call to action.

we will not give up. we will continue to stand resolute. our members will be voting in november and working to elect a pro-life president. hillary clinton position on abortion is that it should be at any point in pregnancy, that it should all be paid for by the taxpayers. she is in lockstep with planned parenthood, who she recently spoke to. planned parenthood and others property today, but women lost. i, as an organization, a nonprofit, cannot endorse a candidate, but i can say as an individual there are clearly only two candidates to before. hillary clinton is pretty much saying abortion should be legal for any reason, any point in pregnancy. he is trump has said

pro-life. i would urge americans to vote pro-life up and down the ticket. thank you so much. >> i am the president of student for life for america, one of the largest pro-life youth organizations. we were out here last night, organizing this rally here today. today, women lost. today, the supreme court put politics over the health and safety of women in our country. they told our state that they do not have the right to protect half of their citizens. the abortion industry and off of parenthood profit the despair of women, all of the betrayal of women and one today. -- won today. these are common sense ofuirements that over half americans agree with. the majority of millennial's actually agree with what was passed in texas.

requiree laws that ambulatory personnel to come through. a number of sensors in the abortion facilities. these are common sense. when someone goes in for a colonoscopy or liposuction, a have to have these in place, but today, they said they are going to put access over the lives of women. and are now operating abortion facility in the state of pennsylvania for more than four decades. they stopped referring patients to them, because after their abortions, they were coming back with an aerial diseases because of the dirty equipment they were using. they asked to investigate that abortion facility, but no one would because they were afraid. they were afraid because it was an abortion facility. one person died.

the facility too late, and guess what? they could not get her out of the hallway in time. she died in that facility. every time a woman goes to an abortion facility in america, she is going to wonder, will i come out alive? announcer: after today's ruling, president obama issued a statement, saying in part, i am pleased to see the supreme court protect women's rights and health today. harm women'stions health and place an unconstitutional obstacle in the path of women's reproductive freedom. on c-span, the oral arguments. the supreme court heard the case back in march. todaywill hear argument in the case of whole women's health.

toti: mr. chief justice, members of the court. these are unnecessarily health regulations that create obstacles to abortion access. there is ang pulmonary question. would you address that, that precluded, and let's take first the claim that was in the prior investigation. let's assume that they are with theclaims admitting privileges. why isn't it precluded? ms. to this wast in thei absence of judgment in the case. :justice: you could have asked

for it. after theix days supreme court issued its decision in this case. you could've asked for supplemental briefing. abbott, theter court of appeal said it would only consider evidence in the trial record in rendering its decision, and it held that the evidence in the trial record was speculative, that there was nothing sufficient to conclude that any doctor would be able to obtain admitting privileges or that any clinic would be forced to close as a result of the admitting privileges requirement. justice: but you made with the same claims. when you have allegations on the challenge, and the challenge results against you, and all you have to do is come up with new evidence, and you can start over again? no, it must be newly

discovered evidence that would -- wouldnce the shift not be sufficient. the plaintiff's nearly had not discover the evidence or did not bring it forward, that would provide the basis for a -- subsequent supreme what is material to the claims, it does provide sufficient basis. justice: and what if this key new evidence? ti: it is the closures of the clinics after the implementing of the requirements. the first was a challenge that was before the law took effect, and a court concluded that there was not sufficient evidence that any doctor would actually be unable to obtain admitting privileges or that any clinic would actually close. : there is very little evidence in this case with respect to why any particular closed. basically, your argument is that

the logic that, and after that point, there was a decrease in the number of clinics. so suppose you win here, and the state then examines what happened in each of these clinics and comes up with evidence showing in quite a few instances, the closure was due to other factors, and so could they take the position, well, the decision of this court upholding that the law is unconstitutional is not binding , and so you would have to sue them again, and they would be able to make the same argument you are making now? is that correct? ms. toti: no, your honor. what is theo: difference? was that their burden? no, your honor, not in the first instance.

the state did not offer anything to rebut the evidence, which would have been more than sufficient to support the district court's finding thath hb2 was cause the clinics to close. in any given year, there may have been a one or two clinic baryons. following the enactment of hb2, more than 20 clinics close with a short period of time. justice: what is evidence that it is related to the legislation? ti: the timing, and the testimony of the plaintiff as to why their clinics closed. in anticipation of enforcement, in some cases, and in some cases because of actual enforcement of the requirement.

ginsburg: the avenue tory, that was not part of it, and your position on that is that that was a discrete claim. is that your position? -- the ambulatory, that was not part of it. ms. toti: yes. that had nott of been a doctor yet. : well, sometimes regulations take years to promulgate. i do not know of any rule that says we have to wait for ,egulations to be promulgated and the key objections you are making were clearly in the statute anyway. toti: island disagree.

until those were adopted, and the statute provided a deadline for the adoption of those reg deadlines, they could not have known if grandfathering was permitted, and if they had been permitted, as they have in every of the that has been adopted for abortion providers, the burdens would have been much less, and they would have first attempted before filing their suit. justice roberts: so you think you can challenge both? if you can separately challenge them, if you challenge just the admitting privileges provision, how would you factor in -- presumably, you would have to was nothat the revision

under challenge, so in assessing the burden, you would not look admission. and then if you were challenging the other separately, you would .ave to look at it solely it seems to me the separation of the two would make your case much harder. withoti: i would disagree that, your honor, because each of these is extremely burdensome on their own. closure of for the nearly half of all of the abortion facilities in texas to date, and the requirement as it took effect, the respondents have stimulated that it would close any remaining licensed abortion facility that was not able to comply with the admitting privileges requirement, so independently, each requirement is extremely burdensome, and collectively, the 12 punch of these would be responsible for the closure of nearly 30.

breyer: i think the chief justice asked, and i do not when to take words out of his mouth, but the court has said that if the regulation goes into effect, there would be one austin, two inn dallas, one in fort worth, two in houston, and either one or two wl in san antonio, and before that, you said that the enforcement of the appointment of admissioneges would reduce the number from 20 down to about 20. i think the question is, what evidence of those findings -- does it rest upon? as i think you have heard the other side say, there is no such

evidence, or the court of appeal said there is no such evidence, so can you give a brief number or page numbers that show that reflectief findings this from about 40 to about eight, which is what the district court found, based on evidence? what was that evidence? ti: yes, your honor. initially, 20 clinics closed in the wake of hb2. to the initial enforcement of the admitting privileges requirement, and 11 closed on the day that the requirement first took effect. the evidence concerning first eight, even if we -- and there is basis in the record for the district court to inferred that those eight closed for the same reasons as all of the others, but -- justice: where in the record is that evidence?

toti: i can supply this during the rebuttal, but the evidence is in the testimony of why their clinics closed. each testified that their clinics closed either due to anticipation of enforcement of these requirements, knowing that the clinic would not be able antinue operating, and as result of that, either they needed to move resources to remaining clinics to assure that some clinics would continue to operate in the state. justice: would you give us any record references later or on rebuttal? ms. toti: yes. how many?ito: on the day1 closed that these admitting privileges took effect. justice alito: how many are you claiming closed? ti: to date, 20.

justice alito: how many do you have direct evidence? approximately 12, your honor. direct. justice alito: we are not talking about a huge number of facilities. i do not understand why you could not have put in evidence about each particular clinic to show why a clinic closed, and as to some of them, there is information that they closed for reasons that have nothing to do with this law. all maybe if you take out of those, there still would be a substantial number and a enough to make your case, but i do not understand why you do not put in direct evidence. i mean, i can give you examples. planned parenthood in texas -- is this one of the ones you are talking about? yes, your honor. justice alito: huffington post reported they closed as a result of the texas women's program health bill, which cut funding for family planning services.

it is not the law we are talking about here. ms. toti: your honor, the evidence is not in the record. justice alito: i understand, and you a lot of evidence not in the brief, but what about that particular clinic? you said youurg: have 12, and you are going to supply us with those citations later. i understood you to say? oti: yes. kagan: is it right that in the two-week. keep her requirement was in effect that over one dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately? is that right? that is right, your

honor. it is like a: perfect experiment. the lot is in effect, the clinics close. you take the law of effect, and they open. that is exactly what the state stipulated, and that is evidence of the impact of the requirement. justice kennedy: talking about the capacity of the remaining clinics, would it be, a, proper, helpful, for us to look for findings on clinic capacity? tot i do noti think that is necessary:, mr. justice. fewer than 10 do not have the capacity to meet be statewide demand. it had beenedy: some changes, like a major clinic. i do not know the adjective they

used for it in san antonio, but suppose there were evidence -- there was a capacity and a capability to build these kinds of clinics. be of import? and then it would show that this law has an effect, and a beneficial effect, as far as the little flechette is can learned? if they had any doubt, the re-man would provide the petitioners with the opportunity to supplement the evidence already in the record, but the evidence in the record shows that -- supports the district court finding that because of the requirement, the costs of it are so prohibitive, it will deter clinics from opening. alito: the number of centers providing abortion has increased by 50%

since this law went into effect? oti: since this law has taken effect, three new ambulatory surgery centers have opened, and there was evidence about that, and the trial court knew that was going to happen, and the trial court took that into account when making its finding. but nevertheless, there was substantial evidence, including the texas experience in 2003, following the law for later or abortions, for post-16-week abortions that shows that the , and thever adjusted rate at which those procedures occurred in texas was drastically imaged following that. alito: one quick question, and i do not want to take your rebuttal time, this

case in louisiana. tothat case, they were able put into evidence about the exact number of abortions that of therformed in all facilities. why could that not have been done here? why was it not done here? this is cutting into my rebuttal time, your honor, but there was information about the number of abortions and the geographic distribution of those abortions. collects those statistics, and those statistics are part of the record in this case. justice ginsburg: we have taken up so much over time, can she have some time to a address the merits? justice roberts: why do you take five minutes, and we will address this after that? ms. toti: they are not

justified, and therefore they pose an undue burden. roberts: is there a benefit? i thought you expressly did not challenge the law as lacking a rational basis? not preserve our national -- natural basis claim. here.e preserved it here, we are focusing on the undue burden. we would not concede that the law has a rational basis, because, in fact -- we have toerts: assume that it does, because you are not raising that challenge,m are we? -- because you're not raising that challenge, don't we? concede: we would not that it is rationally related to the interest in health. ginsburg: it is on to

burden and not rational basis. that is right, your honor. in order to determine this, we must first consider the magnitude of the burden that it imposes and then compare that burden to what the law is intended to achieve. roberts: that is not logical. the question is about an undue burden. what difference does it make? the purpose of the law, in assessing whether it is substantial or undue? it seems want to get past the assumption that the law has a rational basis, and you have not challenge that, then you look at the burden or the obstacle. again, the purpose is what it is directed to does not make a difference. it is either a substantial obstacle or an undue burden, or it is not. ti: in order to determine

whether a burden is undue, we have to consider what the burden is in relation to. it example, in upholding the informed consent, the court first looked to the state interest that was being served by those requirements, and in that case, the state' interest was easilyhat it designed to serve that purpose by making the abortion decision more informed. roberts: i think that went to whether it was due to her right to exercise a right of abortion, not that the state interest was asserted? welli:i: -- ms. tot right with the liberty to access the procedure, and it concluded that the state could not impose

unwanted burdens, so where the state had a good reason to impose a restriction, and that restriction included burdens that were undue, the restriction stands, but where a restriction in theasonable, or language, medically unnecessary, and it is going to impose burdens on access to abortion, then that restriction cannot be sustained under the 14th amendment. justice sotomayor: may i? there are two types. a medical abortion, that does not involve any hospital procedure. a doctor prescribes two pills, and women take the pills at home. direct? ms. t -- correct? i: under texas law, the

woman has to take it there. justice sotomayor: two days? toti: correct. so she has toyor: travel to get those two days of treatment. let me ask you about that or that travel time. how many other states, and how many other recognized medical shown have testified or that there is any benefit from taking pills at the facility? as opposed to taking the pills at home, as was the case? : there is absolutely no testimony in the record and no evidence in any of the amicus briefs that there is a medical medicationhaving a

abortion at a multimillion dollar surgical facility. the american medical association and every other mainstream medical association to consider these requirements has concluded they are not medically justified for a variety of reasons, including that they put on onerous burdens on medical abortions, which is the earliest form of abortion, and these burdens are also imposed on early surgical abortions, procedures prior to 16 weeks, and as a result, women are going to be delayed later in pregnancy, and there is evidence in the record that following the implementation of the admitting privileges requirement, in this excited month period folly, there was an increase in the number of abortions being performed in the second trimester, so in delaying women's access to abortion, these so by delaying women's access to abortion, these requirements

are actually increasing the risks that women face. justice sotomayor: if the chief may permit me to finish my two-part question? chief justice roberts: sure. justice sotomayor: the second is the d&c, the dilation and what's it called? dilation and -- ms. toti: curettage. justice sotomayor: curettage. what is the risk factor for a d&c related to abortion and a nonabortion d&c? d&cs are performed in offices for lots of other conditions besides abortion. is there any evidence in the record that shows that there is any medical difference in the two -- in the in the procedures that would necessitate an abortion being in an asc or not, or are abortions more risky than the regular d&c? ms. toti: no, your honor.

the evidence in the record shows that the procedures are virtually identical, particularly when d&c is performed to complete a spontaneous miscarriage. so when a woman miscarries and then follows up with her doctor, the doctor will typically perform a d&c. and that's virtually identical to an abortion, but it's not subject to the the requirements of hb 2. justice sotomayor: so your point, i'm taking, is that the two main health reasons show that this law was targeted at abortion only? ms. toti: that's absolutely correct. yes, your honor. justice sotomayor: is there any other -- chief justice roberts: thank you, counsel. justice sotomayor: i'm sorry. is there any other medical condition by 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 a doctor? ms. toti: none, your honor. there there are are no other other outpatient procedures that are required by law to be performed in an asc. chief justice roberts: thank

you, counsel. general verrilli. general verrilli: mr. chief justice, and may it please the court: the effects of the texas law at issue in this case are much more extreme than those of any abortion law that this court has considered since casey. this law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state. and it does all of that on the basis 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 and not decrease. justice alito: is this true of every provision of the of the asc law? general verrilli: no, i i don't think it is true about every provision in the regulations, justice alito. justice alito: not the justice alito: not the regulations -- yes, in the regulations. general verrilli: yes. justice alito: every single provision. then why was the whole thing 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 under the severability clause. one could say that. 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 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 hohow d do cpr? general verrilli: so i -- i don't want to state an opinion one way or the other about that. 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. will 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 written able to remain open, 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, j

82 42 -- ja 242 provides that 25% of texas women of reproductive age are not within 100 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 women lived more than 300 miles. 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, 10,000, to three quarters of a million living more than 100 miles away. mr. keller: well, justice kagan, first of all, i believe the statistics that ja 242, 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 258, acknowledged 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 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