Was expressly modeled on it. After trial the District Court ruled 620 is unconstitutional finding no material differences between this case and Womens Health. Unburdened it found act 620 would leave louisiana with just one clinic and one doctor providing abortions. At the same time it found act 620 would do nothing for Womens Health. In reversing the District Court decision the fifth circuit committed two fundamental errors. First, it usurped the role of the District Court and disregarded all of its factual findings. Second the fifth circuit accepted legal arguments that this court rejected four years ago. Nothing has changed that would justify such a legal aboutface. Even more medical organizations joined the a and 8 is admitting privileges impose barriers to abortion with no benefit patients and this impact the states Eleventh Hour objection to thirdparty standing runs up against still more binding precedent. The court squarely held that it is waivable in the state liberally and strategically waived the issue in the District Court. Even if the state could get past waiver denying standing here would contradict decades of the Court Precedent in numerous areas of the law. Petitioners have thirdparty standing especially because act 620 respects restrict abortion by relating them rather than their patients. What you have done anything different if it had been timely . We could have submitted additional evidence in the court but the evidence that is already there is sufficient to find thirdparty standing, they found thirdparty standing in four abortion cases in point as well as another number of cases such as meyer, craig, carrie and the courts pieces have been consistent in saying the plaintiff who was directly regulated by a law has thirdparty standing. We agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend. Not a directly regulated by the law in question. They allowed thirdparty standing in cases where the state are used the third parties were protected by the law and the plaintiff. If the plaintiff had interests directly contrary to those individuals on whose behalf the plaintiff is claiming to sue, nevertheless attached funding . Of the plaintiff is regulated by the law this court has allowed an attorney to bring thirdparty claims against the statute to attorneys fees. Suppose i know you think the admitting privileges serves no safety purpose but suppose the regulation being challenged was one that a lot of people did serve a safety purpose. We are in a state where physicians assistants can perform abortions and an Abortion Clinic wants to challenge the training requirements, there was no justification. It implicates the interests of women want to get an abortion but you see the clinic nevertheless can sue. The plaintiff directly regulated by the law and make sense for two reasons. First because the plaintiff should not be subject to severe penalties under unconstitutional land second if the plaintiff is directly regulated it makes sense they are the appropriate that sounds like direct standing, not thirdparty standing but in this case is there anything like the conflict Justice Alito mentions . Is there a conflict . There is not even a possible conflict in this case because this court upheld the privileges that serve no benefit in the District Court after a trial specifically found this law would serve no benefit and would harm the health of women in louisiana. Your argument is using the merits to support standing. There is a serious problem with that. The court has allowed thirdparty standing, where one could argue state law was protecting thirdparty plaintiffs in addition to triplett, there was the issue in craig versus born, the law was a state law in oklahoma and the state claimed it was designed to protect younger men from buying beer to make sure they were safe and didnt get into traffic accidents. I am just wondering, are we doctors in any different position than potential plaintiffs, women who feel burdened by this law . The state has not pointed to a single thing that would be different if one woman had been joined in this lawsuit, to the contrary the issues the state says i the key issues whether this law serves health and safety benefits and how difficult it is for physicians to obtain privileges, they are particularly wellsuited to litigate in this the point you have standing on behalf of those women. Yes. The extent that other women may not have brought a suit is irrelevant to the fact that there are some is burden could have and would have had situations permitted them to. Absolutely right. Why shouldnt they be the ones to bring suit . This is a law that restricts abortion by regulating for physicians rather than the patient so it is appropriate for them to be the plaintiff. The constitutional right at issue is not a constitutional right of Abortion Clinics, it is a right of women. In order for women to access their right to abortion they need to be able to access services. Do you think a party, there could be thirdparty standing if there is no hindrance whatsoever to the bringing of suit by people whose rights are at stake. The law directly regulates the plaintiff without a showing of hindrance. In craig versus born there was clearly no hindrance but the court doesnt need to reach these issues because the state strategically and deliberately waived thirdparty standing. That is highly debatable. They didnt raise it in the District Court but whether they affirmatively waived it is debatable. Ja 45, the state expressly conceded thirdparty standing and urged the District Court to reach the undue burden claim saying there was a key interest in removing any cloud of validity under its law that this case was the proper vehicle for doing so. It is a highly debatable interpretation of that passage, what the state was saying was while of a temporary restraining order was issued the lawsuit should continue to go forward and they said there wouldnt be an impediment of a lawsuit Going Forward because doctors would have standing and they would have standing under the law that was applicable at the time. We could debate what was said but it is quite a stretch for the record for you to say there was an affirmative waiver. There was a deliberate waiver and it was attempting to take advantage of a favorable precedent because they upheld texas admitting privileges. States specifically urged, for resolving the constitutional issues. It wasnt raised in the District Court or the court of appeals, but cross petition that is correct. If you had timely notice might have joined a patient or two. Yes, it would be profoundly unfair to allow the state to raise the objection for the first time five years into this mitigation after it urged the District Court to decide the undue burden claim and pursue the undue burden claim to multiple rounds of appeal and even raise the issue in this case before the court in 2016, the first time it raised an objection was when it filed cross petition and j a 45 deliberately and strategically waived decision. How many abortion cases has the court expressly or silently allowed the doctors to sue on behalf of of their women. At least eight. Four of them squarely allowed standing in these circumstances. If we didnt in this case it would require it directly or indirectly overruling eight cases of this court. Correct. In danforth and akron the same law was issued. The health and safety with women but the Court Allowed the physicians to make the claim and show the law didnt help with health and safety. Out of the court discussed the issue of conflict of interest . They said the plaintiffs had standing. It wasnt discussed in terms of conflict with the same arguments in front of the court. I believe it was a footnote in akron but in danforth the ostensible purpose of the law was to save the vulnerable, 3. 22. The Court Allowed the saloon keeper to bring thirdparty standing claim interpret, the Court Allowed an attorney to challenge a law designed to attorneys fees. In carry the Court Allowed a mailorder contraceptive company to challenge a law designed claiming that was protecting the health and safety of people so the Court Allowed thirdparty standing in many cases that are squarely on point. Do you agree that inquiry is a factual one that has to be statebystate . Facts may vary but we know District Court held the trial here and found no material differences between i know but if the issue of statutes are on the books in other states and if the issues are raised there, the same inquiry required in each case you have the District Court examine the availability of clinics and admitting privileges, the litigation, the results could be different in different states. The texas admitting privileges law was medically unnecessary and that holding can apply to louisiana identical law and the courts reasoning is applicable in louisiana. The burdens of the law may vary but a lot of it has no benefits and doesnt serve any valid state interests is more likely to impose an undue burden. Of estate has admitting privileges law, the state has 10 clinics and two doctors for each clinic when all 20 doctors could get admitting privileges so that there is no effect on clinics, no effect on doctors who perform abortions and no effect on the women who obtain abortions, would a lot be constitutional in that state . That law may still be unconstitutional if it is restricting access due to the 30 mile limit but that is very different from the situation here. T didnt assume all the doctors to obtain the admitting privileges doe prt still cause an undue burden even if there are no effect is . It would have no benefit and oppose a harder questioto propon this case but the District Court after trying all found that they would be severe and leave would be severe and it would leave only one physician to serve 10,000 people per year in the entire state. They went through what the district District Court had said about the various doctors, and it was proper for the fifth circuit to review the District Courts finding for clear error, was it not . Yes, your honor. Clear air is the standard and we believe the findings are more than possible under the standard. Lets take one example. He lets take doe number two. Doe number two is appointed in this case, right . Yes, your honor. It would be countert to his own interest for him to make a super effort to get admitting privileges because he would be defeating his own claim . No, your honor. Doe two brought this lawsuit to protect the rights of his patients and the court found he was competent and qualified in emitted faith efforts. We can argue about whether he had a conflict of interest or not. He previously had admitting privileges at hospital in the shreveport area, did he not . Yes, your honor. He testified because it is a catholic hospital, isnt that right . The hospital showed there would be an admission requirements. Thats correct, your honor. Number three performs abortions, does he not . He has many privileges. He has many that require the admissions that hes able to satisfy because he has an obstetrics practice and thats why he was the only one with privilege. The only credential expert in this case conceded outpatient physicians like these that never intended to treat patients in the hospital and be able to get privileges and the bylaw include many criteria he said its not a place i would feel comfortable, didnt he say that . He did, your honor. Its where he thought he had the best chance of obtaining privileges and he wasnt even able to get privileges there. It was based on at least 4. 1 with over one and a half years. Two, the states credentialing expert conceded physicians who never intended to treat patients in the hospital with and get privileges. Doctor number six. These are outpatient physicians. Any surgical procedure since 2004 and 2005. He also conceded that those that provide only vacation and counseling would never be able to get privileges. In addition to the burden of finding for the support by what happened it has been that they restrict access to abortion and hear the District Court found it would leave louisiana with one clinic and one state and that would mean hundreds of thousands of women with now with 150 miles from the closest provider and the burdens were actually more severe than the court found. The doctor that had the active practice, hes only a parttime dr. Theres been much talk about his statement or findings by the District Court that he was a superseding cause to the act because on his own he will not practice that didnt hope if this goes into effect because he would be the only dr. Putting that aside, he also testified, i am sorry, the manager testified that he only does a limited number and without together doctor, that clinic would have to close. Thats right. The District Court found without the primary provider, it wouldnt be a viable concern. So, regardless of the testimony they would have to close because it would be providing fewer than 30 of the Abortion Service in the clinic. The primary provider was able to get privileges and meaning that women living in northern louisiana but have to travel hundreds of additional miles for the wall that has no benefit in order to access Abortion Services. Whether or not he would quit, the clinic would have to close because it wouldnt happen. It has requirements of inpatient, receiving patients. Can i followup on the question and mine as well. Are you saying that the admitting privileges are always unconstitutional such as they dont have to look at the facts of statebystate or are you saying that actually you do look at the facts of statebystate and in some states many privileges could be constitutional and impose no burdens . It is much more likely to be an undue burden. They admitted privilege to have a purpose in your view. No, your honor. The medical consensus is clear. So any state regardless of the facts. The District Court here found a solution for the problem that didnt exist would actually jeopardize the health and safety of people. The limits would make sense and one of the practical realworld impacts 320 miles back and forth to new orleans to see the same physician they could have seen. It is 320 mile 320 miles from shreveport to new orleans and from a baton rouge back and forth it is 320 miles. When most of them dont have any complications. One of the reasons i concluded it as medically unnecessary its clear they have no medical benefits whatsoever and only pose barriers to abortion they found about abortion and louisiana in the years it is extremely safe to end there is no basis to distinguish the case and the burdens of this law was the license suspended for the regulatory violations . The court heard testimony about that and inspected after listening to the clinics at administrator and thadministrate in the record they concluded there was an excellent Safety Record and that they are qualified and competent. Thank you, counsel. Thank you mr. Chief justice and may i please the court. The fifth circuit held that the plaintiffs in the case failed to carry their heavy burden of proof that is required to invalidate the state law. The decision to require abortion providers to have the privileges was justified by abundant evidence of lifethreatening health and safety violations, malpractice, noncompliance with professional licensing rules from a legislative testimony from women, testimony from doctors who took care of abortion providers abandoned patients. The process claim hinged upon their assertion that they wouldnt be able to get privileges, but they cant and they did. It also failed for the independent reason. So they do not need the rule for the thirdparty standing. So instead they invite the court to exempt them from the rule. The court should decline to make the providers unique among federal plaintiffs and reaffirm even abortion providers must comply with the same as all of the other litigants. Litigants. Doctors and Healthcare Providers and Healthcare Facilities are heavily regulated for ethical reasons and consumer protection. In this context, the conflict between the plaintiff and the individuals the walls seeks to protect should defeat a close relationship party of the standing. Apart from that conflict, the record shows they do not have a close relationship and individual women have litigated the case is on their own for decades. Id like to first address why it is different and then address the standing and waiver. The state presented evidence of how this case is different. The wall is different, the facts are different, the regulatory structure is different. And all of those things dictated a different result. So, the fifth circuit says it was credentialing. It demonstrates there is no credentialing performed by the facilities. They had a robust policies but they do not read them or follow them. For the overwhelming number of other abortions. She will need to go to for the care, not something 30 miles from the clinic. There is no necessary relationship to where shes in. Justice ginsburg that is consistent with the regulation that we had in our regulations and ambulatory surgery so it is consistent in the regulatory structure and we also had evidence in the record of women who did require a transfer. I think that there were at least three who had punctured uteruses and were hemorrhaging. What about the dnc after the miscarriage as i understand it, visa procedures are very much alike of similar regulations about 3 miles and admitting privileges. Under the ambulatory Surgery Center and the Office Practice which do not regulate Abortion Clinics, a doctor that doesnt have a residency and proper scope of care would have to have admitting privileges within a 30mile radius its suggesting no such requirement they are not as tightly regulated as mp3 Surgery Centers. These are separate licensing constructs. Facilities are licensed by the department of health as the ambulatory Surgery Centers and those require all of the medical staff to have admitting privileges. The requirement says geographically close any the same way so we dont interpret it differently. Its consistent and weve been reading the regulations the same. The impact might be different in different places but as far as benefits of the wall it is the same, isnt it . Weve demonstrated that they dont do credentialing there are laws that require a credentialing to be done by the state with respect to these doctors. If they are convicted of a criminal act you are making it sound like theres no state licensing of the doctors. They are licensed. They were skilled in the procedures that they were performing. They hired the radiologist and ophthalmologist to perform abortions at one point in time. In the areas they are performing it wouldnt comply even with Office Practice a radiologist to perform abortions. The testimony as he was performing theres not a lot of testimony in the record about what those doctors were doing other than he hired them. We are talking about these doctors and their credentials. Its sort of still a mystery to me. Its all the other factors into this provide continuity of care. There is no continuity of care. It permits a doctor to have the privileges or to be in contrast with someone who does so its not necessary that it be continuity of care in a hospital. The only thing is the credenti credential. They do not comply with the transfer requirement. Part of what the credentials the District Court at it and found explanations adequate for each good review for the fifth circuit was whether there was a plausible basis in the record for the conclusions the District Court reached for those talking about compliance i would like to take us back to the point they could and did get privileges and this credentialing youve mentioned several times and of course Womens Health discussed that and said that state can say that its doing this for the credentialing service if the hospitals reason were denying and admitting privileges have nothing to do with the particular hospital needs more providers given that its true in texas and here it seems in that case it was demonstrably different. They were proven to be untrue. They would never qualify because the patients dont go to the hospital. The. On the first point about the privileging and minimum requirements it is inaccurate because of it demonstrates it is they dont know what the complication rates are. They had direct transfers resulted in the imaging. Its great that as evidence in the record and served over 3,000 women annually for 23 years, so that is around 70,000 women and its transfer only for patients of her to a hospital. There is evidence in the record bu that they dont know f it is accurate because they dont track. I dont know of a medical procedure where it is lower than that of any kind. It can be either medical or surgical and even if it is medical they would handle the procedure which is a surgical abortion so under a standard of care in louisiana even if it is the medication abortion, the doctors should be able to handle the surgical abortion and be qualified to do that. It is barred by this new law and says you have to have admitting privileges or a written transfer agreement so its a little hard to see how this improves anything. Since you have to have a written transfer agreement anyway is that true or not . If you seem to have problems with the court and agreed with the District Court but that isnt my question. My question is we are not going to solve this in an oral argument. What ive done and im sure the others have come as ive gone through the District Court findings, and ive gone through the court of appeals findings and ive looked at the relevant record through my office and we will do more of that. So, i think it is the weakest case. There are others that are stronger but i would like your opinion about which of these is the strongest and i will be sure to look very carefully at that. You are trying to make an argument and you have for that you have to deal with so in your opinion with respect to which one is your argument the strongest your argument is the fifth circuit was right to overturn a factfinding and credibility finding of the District Court in the i have to respond to which one you feel is the strongest support for you you can say what you want. There is evidence in all of them tha but they sabotage thein applications and only one doctor to back him down in baton rouge and they all agree that isnt difficult to satisfy all i want to know is a member. And i could spend two hours discussing with you what should i look at. I would look at number six. That is a good example. That is a great example because he is a doctor that does only medical abortions, not surgical. He hasnt done a surgical procedure for over 12 years and your states expert testified that it wasnt likely he was going to get privileges anywhere because he only does medical procedures and never saw a patient and virtually all of the hospitals, if not all of them, even if there wasnt a minimum number of patients that had to be admitted, you have to see a certain number in the hospital per year to maintain and he couldnt meet the requirements of you talk about him applying to only one hospital in a situation where it was guaranteed he couldnt meet the requirements you have to state of life if somebody sees patients because if the patients are not admitted and theres no circumstance in which this doctor is going to admit a patient because he does no surgical procedures. The record shows they can and did get privileges and theres nothing to prohibit them. But a kurt testified it is unlikely that a doctor who like those six would probably not be able to obtain active admitting and surgical privileges. That was your expert and the basis the District Court finds he didnt have to apply to all the hospitals. There was no point and its on the basis of that kind of thing the District Court held he was likely not able to practice. Where are they able to say that clearly was wrong . The fifth circuit did a review and in a brief amount of time i have left i would like to say one thing about standing. Its the reason it demonstrates why they shouldnt challenge a regulation that protects people intended to protect a class of people from a certain type of activity. Health and safety regulations as a practical matter and even yesterday this court was talking about the fact consumers are protected by a certain body of law. That is what we are doing with Certain Health and safety regulations. There was a first for the plaintiff in the beginning of the case all the way through and in addition to that when he was 20 when he was no longer subject to the law. Which is why i would also point out. It was only on the basis of the beer sellers standing in a state regulation that was designed to protect the vulnerable boys from drinking beer and getting into accidents. Very briefly, counsel. The buyer in the case it was more a financial transaction. The interests were better aligned because he wasnt prohibited from consuming representing a. This would be unconstitutional even if all providers already have admitting privileges or could easily get them. I think to your question mr. Chief justice and may vary by state and at that point we ought to be talking about how much. Nobody disputes with the doctors did. Theres no dispute about what they did or didnt do. Its about how we will review these efforts. Thats what i dont understand. I think everybody also agrees that the most likely place the woman would be is at home and theres no necessary relationship to 30 miles from the clinic. Thats going straight to the benefits not looking at the substantial obstacle. All of the privileges and requirements that im aware of some distance limitation and the benefits they go to you want the doctor to be able to admit them for 15 or 20 or 30 miles and with respect to credentialing. Thats turning out the clin clinic. That is often true that the record here reveals that sometimes it is not true. I think on the record the director said he has on occasion had a patient develops a problem and is admitted into the hospital and treated. We dont know how often it happens and im prepared to say that it doesnt happen all that often. But the point is it does happen and when it does it is very serious. It but never happy when you go to the clinic to take pills and go home. If you deliver a complication at home isnt clear he wouldnt say to your doctor and having a problem and they would say that the following hospital i will see you there at this and what they want. They want the option to be treated by the doctors at the clinic. Are you taking the position that theres no woman in louisiana doesnt feel burdened by this law . Is there at least one potential woman that you believe could burdened this . I assume there are. We assume because it is logical theres going to be a woman that was 330 miles away that is going to say thats an unusually long period of time for me to have to drive and drive back the same day or the next day. Putting that aside, where is there a conflict between a woman and her doctor if that woman is going to take the position that this law burdens me what is the potential conflict . Shes going to come in and say you would credentialing so i shouldnt sue or if you havent made an effort so i really shouldnt sue. What women did as a plaintiff is going to have a conflict with the doctor who wants to protect her rights by doing what they can to comply with the law or not bu that their interests aret misaligned. It is unduly burdenthis unduly o abortion. I do not see a conflict with that. One of the interests of the forprofit providers not being regulated and the other is the interest in their own health and safety. I dont know how this would have played out. It isnt clear to me. Ive read the briefs and i understand there are arguments on both sides. People have very strong feelings and a lot of people think its wrong and a lot of people think the opposite is wrong. In the later cases i think personally the court struggling with the problem what kind of rule of law do you have to contain the sorts of people wax so therefore i take casey as given and i think eight cases where youve been standing we can go back and reexamine marbury versus madison but we have eight cases in the abortion area and in other areas and hold Womens Health picks that up. Casey picks that up and they really want us to go back and reexamine this. You have good arguments but why departs from what was a good precedent . I think what we want to say is in none of the cases have the Court Considered or signed off in the face of a potential conflict of interest so this is an argument thats never been in front of the court and we dont think that it should accept it. I know you have limited time. I understand the point the impact varies from state to state but why do you look at each stage benefit differently if they are not going to change from state to state . I disagree with the. If you had a state that did focus and the hospitals could dispute whether that happens here i would say it is a key factor in if you look at the joint commissions if however we think about that they could very depending how it works in a particular state. I dont think that its clear how we will view these efforts as it doesnt apply to the hospital pleased to these privileges. There were privileges at the hospital in new orleans and needed a doctor in baton rouge. Though i did refrain that it cant be done and its hard to figure out that basis because its pretty general to trace it back it seems to be the hospital by law and as best we can tell they look like the ones they say would keep people from getting privileges. They say the ones who did get the privileges practice in ob gyn so they have women were women admitted to hospitals and the ones who do not have the medical abortions. Number two tried to get a doctor. Its a tougher climate here. Its tough for for people to perform abortions quite different from new orleans and i was told by one dont do it because you try to get the covering doctor and that doctor would be subject to picketing. Weve all seen that. Weve gone through it. We will go through it more. What you want to say . I think doe two is intrigued but but more and poorly what it would save this. In a preenforcement setting that sort of the big back and carry thet enough to burden. What ought to have to happen is the physicians ought to have to put their applications where the mouth are ando then well find out whether they really cant, whether doe two really cant come whether doe number five really can find a coming doctrine baton rouge. Can that be done . But in this record i ever skeptical that they cant. Is it not a reality, is it not really the fact, that almost all hospitals in the state of louisiana do have an admission, you have to have an admission record in order to admit patients. Theres something in the record to that the fact that you dont get, if you dont send patients to the hospital, you dont get admission privileges. You may answer. Justice ginsburg, i think thats difficult to square with the fact that delphi to sit not have an ob gyn practice got privileges at touro. Petitioners acknowledge that there are not explicit patient minnows. They call the implicit. They wouldve precluded doe number five it didnt. This ought to playy themselves out and opposed enforcement context, not as here. Thank you general. Thank you. Five minutes, ms. Rikelman. Your honor, the lack of benefits of these laws is not state dependent. The medical consensus is clear that in no state do they serve health and safety benefits. Even thehe federal government a few months ago removed and admitting privileges requirement from its regulations ofmo surgey centers nationwide, finding the requirement is medically unnecessary and imposes burdens. This court rejected an alleged credentialing benefit in whole womans health. After holding a a trial the District Court rejected this law would survey credentialing benefit in louisiana. With respect to burdens, the District Court found this law would be extremely burdensome, more so than the texas law and whole womans health. Its finding that these physicians would not be able to get privileges is supported by at least four aspects of the record. The fact that they tried to get privileges at 15 hospitals over one and half years under the court supervision, the fact that the states expert conceded that outpatient physicians who dont have a hospitalbased practice are unlikely to get privileges, the fact that Abortion Access was thrown into chaos when this law took effect, and the hospital bylaws themselves which included a bright of criteria that these physicians could never need, including residency requirements. And finally id like to point out this is not a preenforcement challenge. The state has recognized that, including in its state papers before this court. The District Court allowed the law to take effect but enjoined its penalties and supervise the physicians efforts to get privileges over a year and half. Again, the state has previously acknowledged that this is not a preenforcement challenge. If there are no further questions. Thank you, counsel. The case is submitted. Like to see on the cspan networks the house returns at 9 a. M. To begin debate on a 1. 5 trillion infrastructure package. Infrastructure package. Thats at 9 a. M. On cspan. On cspan2 the Senate Returns at 10 a. M. Eastern and continues work on the fiscal year 2021 defense policies and programs bill. At 10 a. M. On cspan3 a Senate Committee holds a hearing on reopening the economy and starting school safely. Witnesses include dr. Fauci, head of the National Institute of allergy and infectious diseases, cdc director dr. Robert redfield, admiral gerard of health and human services. Later at 12 30 p. M. House Financial ServicesCommittee Hears from Federal Reserve chair Jerome Powell and treasury secretary Steven Mnuchin at an oversight hearing on operations at the Treasury Department and the Federal Reserves pandemic response