Whole Woman's Health v. Hellerstedt

Oral argument transcript · No. 15-274 · October Term 2015 · argued March 2, 2016 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Stephanie Toti, New York, N.Y., for the petitioner
• Donald B. Verrilli Jr., Solicitor General of the United States, amicus curiae supporting the petitioner
• Scott A. Keller, State Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument this morning in Case 15­274, Whole Woman's Health v. Hellerstadt. Ms. Toti. ORAL ARGUMENT OF STEPHANIE TOTI ON BEHALF OF THE PETITIONERS

Stephanie Toti: Mr. Chief Justice, and may it please the Court: The Texas requirements undermine the careful balance struck in Casey between States' legitimate interests in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies. They are unnecessary health regulations that create substantial obstacles to abortion access.

Justice Ginsburg: Ms. Toti, there is a preliminary question ­­ would you address that ­­ that this claim is precluded. And let's take first the claim that was in the prior litigation. Let's assume that they're separate claims, or let's take the admitting privileges. That was argued and decided. Why isn't it precluded?

Stephanie Toti: Your Honor, it's not precluded because material facts relevant to the claim developed Alderson Reporting Company Official 1 subsequent to entry of judgment in the Abbott case.

Justice Kennedy: But you could have amended ­­ you could have asked for supplemental briefing. I mean, the new action is filed six days after the Supreme Court issues its decision in this case. You could have asked for supplemental briefing?

Stephanie Toti: In Abbott the plaintiffs brought the ­­ the new facts to the attention of the court of appeals. The court of appeals said that 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 wasn't a sufficient basis to conclude that any doctor would be unable to obtain admitting privileges, or that any clinic would be forced to close as a result of the admitting privileges requirement.

Chief Justice Roberts: But you're asking ­­ you made allegations concerning those same claims. I mean, is your argument that when you have allegations on a facial challenge and a facial challenge is resolved against you, that all you have to do is come up with new evidence and then you can start over again?

Stephanie Toti: No, Your Honor. The ­­ the ­­ the evidence must be material, and it must be newly developed. So newly discovered evidence wouldn't be Alderson Reporting Company Official 1 sufficient. If it was evidence that was available at the time of the first suit, but the plaintiffs merely hadn't discovered the evidence or didn't bring it forward, that wouldn't provide the basis for a subsequent suit. But evidence that develops after judgment in the first suit that is material to the claims does provide sufficient basis for a ­­ a second ­­

Justice Kennedy: And what's this key new evidence?

Stephanie Toti: The ­­ the evidence is the clinic closures that resulted from enforcement ­­ actual enforcement of the admitting­privileges requirement. So the ­­ the first suit was a pre­enforcement challenge. It was before the law took effect, and the 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.

Justice Alito: Well, there is very little specific evidence in the record in this case with respect to why any particular clinic closed. Basically, your argument is that the law took effect, and after that point, there was a decrease in the number of clinics. So suppose you win here, and the State then Alderson Reporting Company Official 1 examines what happened in each of these clinics and comes up with evidence showing that in quite a few instances, the closure was due to other factors. And so then they would ­­ then could they take the position, well, the decision of this Court holding that the law is facially unconstitutional is not binding on us by res judicata, and so you would have to sue them again, and they would be able to make the same argument you're making now. Is that correct?

Stephanie Toti: No, Your Honor. And ­­

Justice Alito: What's the difference?

Stephanie Toti: Well, first of all, the State had an opportunity to bring forward evidence in this case about the reasons why ­­

Justice Alito: Was it that ­­ was that their burden?

Stephanie Toti: No, Your Honor. Not in the first instance, but the plaintiffs came forward with evidence and ­­ and the State did not offer anything to ­­ to rebut the evidence, which was more than sufficient to support the district court's finding that HB2 was the cause of the clinic closures.

Chief Justice Roberts: What ­­ what evidence is that?

Stephanie Toti: There are a couple of things, Alderson Reporting Company Official 1 Your Honor. Prior to HB2, in ­­ in the five years prior to HB2, the number of clinics in the State remained fairly stable. In any given year, there may have been a one­ to two­clinic variance. Following the enactment of HB2, more than 20 clinics closed within a very short period of time. The timing of the closures ­­

Chief Justice Roberts: What?

Stephanie Toti: ­­ alone ­­

Chief Justice Roberts: I'm sorry. Yeah. What is the evidence in the record that the closures are related to the legislation?

Stephanie Toti: The ­­ the ­­ the timing is part of the evidence, Your Honor, and the testimony of the plaintiffs about the reasons why their clinics closed. So that the plaintiffs testified that clinics closed in anticipation of enforcement in some cases, and in some cases because of actual enforcement of the requirements.

Justice Ginsburg: Can we go on to the second piece; that is, the ambulatory surgical centers? That was not part of the last case. And your position on that is that that is a discrete claim, so it's not barred by a claim preclusion. Is that ­­ is that your position?

Stephanie Toti: Yes. That's correct. And the claims against the ASC requirement weren't ripe at the Alderson Reporting Company Official 1 time that the Abbott case was filed, because the final implementing regulations for that statutory requirement hadn't yet been adopted.

Justice Kennedy: Well, certainly in the Federal system, and I assume in many States as well, regulations sometimes take years to promulgate. I don't know of any rule that says we have to wait for regular ­­ regulations to be promulgated unless it's something unanticipated. And the key objections you're making were clear in the statute, anyway.

Stephanie Toti: I would disagree that ­­ that the extent of the burden that the law would impose was clear on the face of the statute. Until those implementing regulations were adopted ­­ and the statute provided a deadline for the adoption of those regulations ­­ until they were adopted, the plaintiffs couldn't have known whether waivers or grandfathering would have been permitted. And if waivers or grandfathering were permitted, as they have been in every other ASC requirement that's been adopted for abortion providers, the burdens would have been much less, and the plaintiffs would have first attempted to get licensed and seek appropriate waivers before filing their suit. This ­­

Chief Justice Roberts: So you think you can Alderson Reporting Company Official 1 separately challenge the admitting­privilege provision and the ASC provision?

Stephanie Toti: Yes, Your Honor. Because those ­­

Chief Justice Roberts: So if you can separately challenge them, if you challenge just the admitting­privileges provision, how would you factor in ­­ presumably, you would have to assume that the ASC provision was not under challenge. So in assessing the burden, you would look at just the admission privilege. And vice versa, if you're challenging just the ASC separately, you'd have to assume you'd assess the burden solely caused by that provision. It seems to me the separation of the two provisions makes ­­ would make your case much harder.

Stephanie Toti: I ­­ I would disagree with that, Your Honor, because each of these requirements is extremely burdensome on its own. The admitting­privileges requirement, which is partially in effect, has been responsible for the closure of nearly half of all the abortion facilities in Texas to date. And the ASC requirement, if it took effect, the Respondents have stipulated that it would close any remaining licensed abortion facility that was able to comply with the admitting­privileges requirement. Alderson Reporting Company Official 1 So independently, each requirement is extremely burdensome; and ­­ and collectively, the one­two punch of these requirements would be responsible for the ­­ the closure of nearly 30 ­­

Justice Breyer: What I think the Chief Justice asked ­­ I don't want to take words out of his mouth ­­ but I think the question was, one of the two lines that's been asked, is that in the district opinion at page 7, the district court has said that if the ASC regulation goes into effect, there will be one facility left in Austin, two in Dallas, one in Fort Worth, two in Houston, and either one or two in San Antonio. And before that, he said that the enforcement of the appointment privileges, the privileges of admission, would reduce the number from 20 down to about ­­ from 40 down to about 20. Now, I think the question was, what evidence did those findings rest upon? As you've heard, the other side, I think, say there is no such evidence, or the court of appeals said there is no such evidence. So can you give a brief account or page numbers that will show that those findings, the diminishment of the number from about 40 to about eight, which is what the district court found, rested upon some evidence? What was that evidence? Alderson Reporting Company Official

Stephanie Toti: Yes, Your Honor. So initially, 20 clinics closed in the wake of HB2. Eight closed prior to initial enforcement of the admitting­privileges requirement, and 11 closed on the day that the admitting­privileges requirement first took effect. Respondents quibble with the evidence concerning the first eight. Even if we ­­ and ­­ and there is basis in the record for the district court to infer that those eight closed for the same reasons as all the others, but even if we ­­

Chief Justice Roberts: Where ­­ I'm sorry to interrupt you. Where in the record is that evidence?

Stephanie Toti: Your Honor, I can provide specific pin sites during my rebuttal, but the evidence is in the plaintiffs' testimony about the reasons why their clinics closed. Each of the plaintiffs' class testified that their clinics closed either in anticipation of enforcement of these requirements, knowing that ­­ that the clinic would not be able to continue operating once the requirements took effect, and as a result of that, either they needed to move resources to remaining clinics to ensure that some clinics would continue to operate in the State ­­

Justice Breyer: What'd they say? Could you Alderson Reporting Company Official 1 give us any record references later or on rebuttal?

Stephanie Toti: Yes.

Justice Alito: As to how many, of the total that you claim closed, do you have direct evidence about the reason for the closure?

Stephanie Toti: Well, 11 of them, Your Honor, closed on the day that the admitting privileges took effect.

Justice Alito: Yeah. And as to how many ­­ how many are you claiming total closed as a result of the law?

Stephanie Toti: To ­­ to date, roughly 20 clinics have closed.

Justice Alito: And of the 20, how ­­ as to how many do you have direct evidence?

Stephanie Toti: I ­­ approximately 12, Your Honor, direct evidence.

Justice Alito: Because if ­­ if you go through this ­­ now we're not talking about a huge number of facilities. I really don't understand why you could not have put in evidence about each particular clinic and to show why the clinic closed. And as to some of them, there is ­­ there's information that they closed for reasons that had nothing to do with this law. Now, maybe when you take out all of those, Alderson Reporting Company Official 1 there still would be a substantial number, and enough to make your case. But I ­­ I don't understand why you didn't put in direct evidence. I mean, I could give you examples: Planned Parenthood Center for Choice, Bryan, Texas. Is that one of the ones you're talking about?

Stephanie Toti: Yes, Your Honor.

Justice Alito: Okay. There's a news report. Planned Parenthood and ­­ and the Huffington Post reported that this was closed as a result of the 2011 Texas Women's Health Program bill, which cut funding for family planning services. It's not the law that we're talking about here.

Stephanie Toti: Well, Your Honor, that evidence is not in the record.

Justice Alito: Well, I understand that. And you put quite a bit of evidence that's not in the record in your brief. But my point is why is there not direct evidence about particular clinics?

Justice Ginsburg: You said you had direct evidence for 12 clinics and you were going to supply us with that ­­ those record citations later. That's ­­ understood you to say?

Stephanie Toti: Yes. Yes, Your Honor. Absolutely. But I think what's ­­ what's important to Alderson Reporting Company Official 1 keep in mind here ­­

Justice Kagan: Ms. Toti, could I ­­ could I just make sure I understand it, because you said 11 were closed on the day that the admitting­privileges requirement took effect; is that correct?

Stephanie Toti: That's correct.

Justice Kagan: And is it right that in the two­week period that the ASC requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately; is that right?

Stephanie Toti: That ­­ that is correct, Your Honor. And ­­ and ­­

Justice Kagan: It's almost like the perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.

Stephanie Toti: That's absolutely correct. And as the State had stipulated, that's exactly what the State stipulated would ­­ would happen. And that ­­ that stipulation is certainly direct evidence of ­­ of the impact of the ASC requirement.

Justice Kennedy: The ­­ the State, I think, is going to talk about the capacity of the remaining clinics. Would it be A, proper, and B, helpful, for Alderson Reporting Company Official 1 this Court to remand for further findings on clinic capacity?

Stephanie Toti: I don't think that's necessary, Your Honor. I think there is sufficient evidence in the record that we have to support the district court's finding that the remaining clinics, which would number fewer than ten, don't have capacity to meet the statewide demand that ­­

Justice Kennedy: There ­­ there have been some changes, like a ­­ a major clinic ­­ I don't quite know the adjective they use for it ­­ in San Antonio. But there ­­ suppose there were evidence that there was a ­­ a capacity and a ­­ and a capability to ­­ to build these kinds of clinics, would that be of importance? And then it would show that this law has an effect, and a beneficial effect so far as the legislature is concerned.

Stephanie Toti: If the Court had any doubts about the capacity of the remaining clinics, a remand would certainly provide the Petitioners with ­­ with the opportunity to supplement the evidence already in the record. But the evidence in the record shows that ­­ supports the district court's finding that because the ­­ the ASC requirement, the costs of it are so prohibitive, it will deter new clinics from opening to Alderson Reporting Company Official 1 take the place of the ones that closed.

Justice Alito: Is it correct that the number of ambulatory surgical centers performing abortion has increased by 50 percent since this law went into effect?

Stephanie Toti: There have ­­ since this law has taken effect, three new ambulatory surgery centers have opened. And there is evidence about that at the trial, and the trial court knew that that was going to happen. The ­­ the trial court took that into account in ­­ in making its finding. But nevertheless, there was substantial evidence, including Texas's experience in 2003 following enactment of the ASC law for later abortions, for post­16­week abortions, that shows that the ­­ the market never adjusted and the ­­ the rate at which those procedures occurred in Texas was ­­ drastically diminished following that enforcement of the law.

Justice Alito: Well, one ­­ one quick question about capacity. I don't want to take your rebuttal time. But your co­counsel put in ­­ is also litigating a case like this in Louisiana. And in that case, the plaintiffs were able to put in evidence about the exact number of abortions that were performed in all of the facilities. Why could that not have been done Alderson Reporting Company Official 1 here? Why wasn't it done here?

Stephanie Toti: Well, there ­­ there ­­ so I see that I'm getting into my rebuttal time, Your Honor, but there is evidence in the record about the ­­ the number of abortions that were performed on an annual basis, the geographic distribution of ­­ of those abortions. Texas collects those statistics, and those ­­ those statistics are ­­ are part of the record in this case.

Justice Ginsburg: You ­­ you had ­­ we have absorbed so much of your time with the threshold question. Perhaps you can ­­ can she have some time to address the merits?

Chief Justice Roberts: Why don't ­­ why don't you take an extra five minutes, and we'll be sure to afford you rebuttal time after that?

Stephanie Toti: Thank you, Mr. Chief Justice. So fundamentally, these laws impose heavy burdens on abortion access that are not medically justified. And for that reason, they impose an undue burden on the right to abortion.

Chief Justice Roberts: Do you think there's a rational basis for the law based on the benefits that the legislature saw?

Stephanie Toti: I do not, Your Honor, because ­­

Chief Justice Roberts: Well, I thought you Alderson Reporting Company Official 1 expressly did not challenge the law as lacking a rational basis.

Stephanie Toti: We ­­ we did not preserve our rational basis claim. The ­­ the district court denied that claim, and ­­ and we haven't preserved it here. Here we're focusing on ­­ on the undue burden. The ­­ we wouldn't concede that the law has a rational basis because in fact, it undermines ­­

Chief Justice Roberts: Well, we have to assume it ­­ we have to assume it does since you're not raising that challenge, don't we?

Stephanie Toti: Because the law actually undermines the State's interest in health rather than advancing it by causing an increase in later abortions and self­induced abortions, we wouldn't concede that it's rationally related to the State's interest in health, but are ­­

Justice Ginsburg: You said even if the test is undue burden, not rational basis.

Stephanie Toti: That ­­ that's correct, Your Honor. And in order to determine whether a law imposes an undue burden on the abortion right, 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 to be ­­ Alderson Reporting Company Official

Chief Justice Roberts: I don't ­­ how is that logical? I mean, the question is whether there's an undue burden or a substantial obstacle. What ­­ what difference does it make what the purpose behind the law is in assessing whether the burden is substantial or ­­ or undue? It seems once you get past the ­­ the assumption that the law has a rational basis and you haven't challenged that, then you look at the burden or the obstacle. And the purpose that the law is directed to, I would think, doesn't make a difference. It's either a substantial obstacle or an undue burden or it's not.

Stephanie Toti: In order to determine whether a burden is undue, Your Honor, we ­­ we have to consider what the burden is in relation to. In ­­ in Casey, for example, in upholding the informed­consent requirements, the Court first looked to the ­­ the State interests that was being served by those requirements in ­­ in that case, the State's interest in potential life, and concluded that the requirements were reasonably designed to serve that purpose by making the abortion decision more informed and that ­­

Chief Justice Roberts: I thought the undue burden and substantial obstacle went to whether it was undue in light of the woman's right to exercise her Alderson Reporting Company Official 1 right to an abortion, not with respect to the State interest that's asserted.

Stephanie Toti: Well, Your Honor, it's ­­ it's both. Casey sought to balance the State's legitimate interest in regulating abortion with the woman's fundamental right with her ­­ her liberty to access the procedure, and it ­­ it concluded that the State couldn't impose unwarranted burdens. So where the State had a good reason to impose a restriction and that restriction didn't impose burdens that were undue, then the restriction could stand. But where a ­­ a restriction is unreasonable or, in ­­ in the language of Casey, "medically unnecessary," and it's going to impose burdens on access to abortion, then ­­ then that restriction cannot be sustained under the Fourteenth Amendment.

Justice Sotomayor: Can I walk through the burden a moment? There's two types of early abortion at ­­ at play here. The medical abortion, that doesn't involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?

Stephanie Toti: Under Texas law, she must take them at the facility, but ­­ but that is otherwise correct.

Justice Sotomayor: I'm sorry. What? She Alderson Reporting Company Official 1 has to come back two separate days to take them?

Stephanie Toti: That's correct, yes.

Justice Sotomayor: All right. So now, from when she could take it at home, it's ­­ now she has to travel 200 miles or pay for a hotel to get those two days of treatment?

Stephanie Toti: That's correct, Your Honor.

Justice Sotomayor: All right. Let me ask you something about that two­day wait, okay, or ­­ or that travel time. How many other States and how many other recognized medical people have testified or shown that there is any benefit from taking pills at the facility as opposed to taking the pills at home, as was the case?

Stephanie Toti: There ­­ there is ­­ there's absolutely no testimony in ­­ in the record and ­­ and no evidence, you know, in ­­ in any of the amicus briefs that there is a medical benefit to having a medication abortion at a ­­ a multimillion­dollar surgical facility. The American Medical Association and every other mainstream leading medical association to consider these requirements has ­­ has concluded that they are not medically justified for a variety of reasons, including that they impose these onerous burdens on medical abortion, which is the earliest form of Alderson Reporting Company Official 1 abortion, and that these burdens are also imposed on early surgical abortion, 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 implementation of the admitting­privileges requirement, in the six­month period following, there was an increase in both the number and the proportion of abortions being performed in the second trimester. 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 two­part question?

Chief Justice Roberts: Sure.

Justice Sotomayor: The second is the D&C, the dilation and ­­ what's it called? Dilation and ­­

Stephanie 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 ACS or not, or are abortions more Alderson Reporting Company Official 1 risky than the regular D&C?

Stephanie 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 ­­ that's virtually identical to an abortion, but it's not subject to the ­­ the requirements of HB2.

Justice Sotomayor: So your point, I'm taking, is that the two main health reasons show that this law was targeted at abortion only?

Stephanie 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?

Stephanie Toti: None, Your Honor. There ­­ there are ­­ are no other medication requirements and no other Alderson Reporting Company Official 1 outpatient procedures that are required by law to be performed in an ASC.

Chief Justice Roberts: Thank you, counsel. General Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR. FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Donald B. Verrilli Jr.: 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?

Donald B. Verrilli Jr.: No, I ­­ I don't think it Alderson Reporting Company Official 1 is true about every provision in the regulations, Justice Alito.

Justice Alito: Not the regulations ­­ yes, in the regulations.

Donald B. Verrilli Jr.: Yes.

Justice Alito: Every single provision. Then why was the whole thing held to be unconstitutional?

Donald B. Verrilli Jr.: So I ­­ 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. 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 Alderson Reporting Company Official 1 reasonable. Under the ­­ under the ­­ the old ­­ the old law, there had to be a nurse, but not necessarily a registered nurse. Under the new law, there has to be a registered nurse who has a CPR certificate. So do you think that's unreasonable to say that there has to be a registered nurse who knows how to do CPR?

Donald B. Verrilli Jr.: So I ­­ I don't want to state an opinion one way or the other about that. But I do want to ­­ what I ­­ but I think ­­ getting to the point of Your Honor's question, I think the problem the district court confronted here, and I think the reason the district court acted reasonably, despite the presence of the severability clause ­­ and the severability clause provides an instruction that ­­ that every provision, every clause, every word, every application, every individual should be severed. And the problem is ­­ the problem with the kind that the Court noted, I think, in the Ayotte case, for a court trying to apply that, the court's got to go in and decide which collection of the many, many requirements there ought to stand and which shouldn't, and it's ­­ it's going to be invading ­­

Justice Alito: Well, it's all ­­

Donald B. Verrilli Jr.: ­­ the State's regulatory Alderson Reporting Company Official 1 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 ­­

Donald B. Verrilli Jr.: So ­­

Justice Alito: I don't know why things couldn't have been severed out, if there were some that were ­­

Donald B. Verrilli Jr.: 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. Alderson Reporting Company Official 1 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. The 13 ­­ there's 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, could not ­­ 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. Layne­Farrar, the economist, that the cost of retrofitting these clinics to meet the requirements would be between 1.6 and 2.3 million dollars, which would be prohibitive; that the cost of building a new facility would be at least 3.5 million dollars, which would be prohibitive; and that the additional operating cost of an ASC would be between Alderson Reporting Company Official 1 600,00 and a million dollars 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 11 of the 20 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 11 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 65 to 70,000 abortions a year annually. The ASC clinics that will be able to remain Alderson Reporting Company Official 1 open ­­ the ASC facilities that will be able to remain open performed about 14,000 a year. That's what the record tells you. It's Dr. Grossman's expert testimony. It's in the JA from pages 225 to 259.

Justice Kennedy: About 20 percent.

Donald B. Verrilli Jr.: percent. 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 admitting­privileges requirement resulted in the closure of 20 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 Alderson Reporting Company Official 1 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 two­and­a­half, three years, to see if the capacity problem can be cured. Could a ­­ could a district judge could that?

Donald B. Verrilli Jr.: 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.)

Donald B. Verrilli Jr.: 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 Alderson Reporting Company Official 1 away from the major cities, the northern ­­

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's one ­­ a doctor there performed 3,000 abortions in a year. So we don't really know what the capacity of these ­­ of these ASC clinics ­­

Donald B. Verrilli Jr.: Well, I think ­­

Justice Alito: ­­ are.

Donald B. Verrilli Jr.: ­­ 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.

Donald B. Verrilli Jr.: Well, it is. It's common sense that you can't ­­

Justice Alito: Well, common sense ­­

Donald B. Verrilli Jr.: 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 Alderson Reporting Company Official 1 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 percent, 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 2, says that the number of abortions that are, on average, performed annually at the remaining clinics is 2,000. So let's multiply by 2, and you get 16. Let's multiply by 3; you get 24. There were 70,000, approximately, women who needed these procedures. So I ­­ I had taken that. Is it that accurate?

Donald B. Verrilli Jr.: Yes.

Justice Breyer: Okay.

Donald B. Verrilli Jr.: 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 Alderson Reporting Company Official 1 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. Alderson Reporting Company Official

Donald B. Verrilli Jr.: 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.

Donald B. Verrilli Jr.: 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, HB2, can't pass it, Alderson Reporting Company Official 1 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. ORAL ARGUMENT OF SCOTT A. KELLER ON BEHALF OF THE RESPONDENTS

Scott A. 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 ­­

Scott A. 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 Alderson Reporting Company Official 1 located over 100 miles from the nearest clinic?

Scott A. Keller: Justice Ginsburg, JA 242 provides that 25 percent 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 Sotomayor: It includes ­­

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?

Scott A. 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 Alderson Reporting Company Official 1 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's ­­

Justice Ginsburg: Then why should it count those clinics?

Scott A. Keller: Well, here, the evidence in the record showed that this particular clinic was 1 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 percent of Texas women of reproductive age live within 150 miles of an open clinic as of today.

Justice Kagan: Mr. Keller, the ­­ the statistics that I gleaned from the record were that 900,000 women live further than 150 miles from a provider; 750,000, three­quarters of a million, further than 200 miles. Now, that's as compared to just in 2012, where fewer than 100,000 lived over 150 miles, and Alderson Reporting Company Official 1 only 10,000 lived more than 200 miles away. So we're going from, like, 10,000 to three­quarters of a million living more than 200 miles away.

Scott A. Keller: Well, Justice Kagan, first of all, I believe the statistics at 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 percent of Pennsylvania women were going to have to travel at least one hour, sometimes over three hours, and there was a 24­hour waiting period. Texas reduces that waiting period to two hours for traveling over 100 miles. And in Casey, that was not a facial substantial obstacle. Here, that relevant fraction is ­­ is lower. And under Casey, then 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 Alderson Reporting Company Official 1 being imposed? Meaning, even if I grant you that in some circumstances travel time is necessary because you just can't get any kind of abortion clinic to go into a particular area, so you might have to impose a burden that might be undue in other circumstances. Where do we evaluate the benefit of this burden? What ­­ what's the need? You ­­ 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.

Scott A. 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?

Scott A. Keller: And what ­­ and what Casey said is the substantial obstacle test examines access to abortion. Now, if a law had no health benefits, Alderson Reporting Company Official 1 presumably it would be irrational. But even their expert ­­ and this is at 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?

Scott A. Keller: Two responses, Justice Ginsburg. First, the complication rates are greater. When there's a complication rate from a drug­induced abortion, then a surgical abortion is needed as a follow­up. And the first lawsuit ­­

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 30 miles has nothing to do with.

Scott A. 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, in ­­ Alderson Reporting Company Official

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.

Scott A. Keller: Of course, most abortions are surgical abortions in the State.

Justice Ginsburg: Well, I'm asking just about the medical.

Scott A. Keller: That's right. And also ­­

Justice Ginsburg: And ­­ and just it's ­­ 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?

Scott A. 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 ­­ in the case of the medical abortion, the complication generally arises after the woman is back at home. And then the nearest hospital Alderson Reporting Company Official 1 has nothing to do with the surgical center.

Scott A. Keller: Although when the significant majority of women are living within 50 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 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.

Scott A. 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 percent rate, which ­­ Alderson Reporting Company Official

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.

Scott A. Keller: Yeah. Insofar as ­­

Justice Kennedy: You might say that this is within the authority of the State to do, but ­­

Scott A. Keller: Given the higher ­­

Justice Kennedy: And I want to know what your position is on that.

Scott A. Keller: And Justice Kennedy, given the greater complication rates from drug­induced abortions, the legislature would be permitted to act in that way. But 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. Alderson Reporting Company Official 1 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. And ­­

Chief Justice Roberts: What ­­ what evidence would you have put in on the capacity issue if you had been afforded that opportunity?

Scott A. 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.

Scott A. 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 9,000 abortions annually. 9,000. That's 175 a week is what their chart says. Alderson Reporting Company Official

Justice Kennedy: Before ­­ before the Act?

Scott A. 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 9,000 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?

Scott A. 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?

Scott A. Keller: No.

Justice Breyer: No. Thank you very much. Okay. Alderson Reporting Company Official 1 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 30 miles within that ­­ nearby, right?

Scott A. 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.

Scott A. 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?

Scott A. Keller: Justice Breyer, that is not in the record. Alderson Reporting Company Official

Justice Breyer: But so ­­

Scott A. Keller: What I'm ­­

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.)

Scott A. 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 Alderson Reporting Company Official 1 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 28 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?

Scott A. 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 5043 of the Simopoulos oral argument transcript. It's because in looking at the laws, it's Alderson Reporting Company Official 1 whether the legislature has a legitimate purpose in acting. Legislatures react ­­

Justice Sotomayor: That's interesting.

Justice Kagan: Well, can the legislature say anything, General? I mean, if the legislature says we have a ­­ a health­related abortion regulation here, we've looked around the country and we think that there are ten great hospitals in the country, you know, Massachusetts General, Brigham and Women's, and we're going to make all our abortion facilities conform to the standards of those hospitals, and that will ­­ you know, that will increase medical care. Now, it's true we don't make anybody else doing any kind ­­ other kind of procedure conform to those standards, but we think it will increase health benefits if abortion facilities conform to them. Would that be all right?

Scott A. Keller: Under this Court's precedent, abortion can be treated differently. That's Simopoulos. That's Mazurek. And let's ­­

Justice Sotomayor: Well, wait a minute ­­

Justice Kagan: So every abortion facility has to hit the standards of MGH. That would be all right?

Scott A. Keller: Well, there would have to be medical evidence. It is at a minimum disputed. In Alderson Reporting Company Official 1 here, their experts have conceded that doctors believe this ­­ this is precisely where there's a medical disagreement, even if you don't accept our medical testimony, although it was admitted into the record.

Justice Kagan: I'm sure that there's medical evidence that if every hospital, if every facility was as good as Massachusetts General, they would be better facilities. I'm sure that you could find doctors to say that, because MGH, it's a great hospital. But that would be okay, even though it's not applied to any other kind of facility doing any other kind of procedure, even though we know that liposuction is 30 times more dangerous, yet doesn't have the same kinds of requirements.

Scott A. Keller: And that was the holding in Simopoulos. And in Mazurek, the Court ­­

Justice Sotomayor: Well, do you think ­­ would you put ­­

Justice Alito: Would it not be the case that ­­ would it not be the case that a State could increase the ­­ the standard of care as high as it wants so long as there's not an ­­ an undue burden on the women seeking abortion? So, you know, if they could ­­ if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be Alderson Reporting Company Official 1 a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?

Scott A. Keller: No. Provided that women do ­­ are able to make the ultimate decision to elect the procedure.

Justice Kennedy: But doesn't that show that the undue­burden test is weighed against what the State's interest is?

Scott A. Keller: Justice Kennedy ­­

Justice Kennedy: I mean, are they ­­ are they ­­ are these two completely discrete analytical categories, undue burden, and we don't look at the State's interest?

Scott A. Keller: What Casey noted was that the undue­burden test is, is there a purpose or an effect of the substantial obstacle to access? And that's a question about access. As to whether what the State's interest would be, that would be going to a rational basis review or maybe a purpose­based analysis. But you need the clearest proof under the Court's general doctrine about unconstitutional purpose. To infer that there is an unconstitutional purpose when there is a legitimate interest in promoting patient health, which is what Texas did here ­­ even Roe v. Wade said that Alderson Reporting Company Official 1 States can ensure maximum safety for patients.

Justice Ginsburg: But what is the legitimate interest in protecting their health? What evidence is there that under the prior law, the prior law was not sufficiently protective of the women's health? As I understand it, this is one of the lowest­risk procedures, and you give a horrible from Pennsylvania, but absolutely nothing from Texas. As far as we know, this is among the most safe, the least risk procedures, an early­stage abortion. So what was ­­ what was the problem that the legislature was responding to that it needed to improve the facilities for women's health?

Scott A. Keller: In Petitioner's first lawsuit, Planned Parenthood admitted that over 210 women annually are hospitalized because of abortion complications. Here at JA 266 ­­

Justice Ginsburg: As compared to childbirth, many, many ­­ much riskier procedure, is it not?

Scott A. Keller: Well, the American Center for Law and Justice and Former Abortion Providers' amicus briefs dispute that. But regardless, there is evidence ­­

Justice Ginsburg: Is there really any Alderson Reporting Company Official 1 dispute that childbirth ­­ (Laughter.)

Justice Ginsburg: ­­ is a much riskier procedure than an early stage abortion?

Scott A. Keller: Justice Ginsburg, those amicus briefs point out what when you look at record linkage statistic, instead of complication reporting, there may be a difference. And the reason why reporting is important is there's evidence in the record here that abortion complications are underreported. That's at JA 844 and 870 to 72. In fact, Petitioner.

Justice Sotomayor: By hospitals? Underreported ­­ most of the complications you're talking about were reported at hospitals, correct? Yes, there is some evidence of not reporting other things outside the hospital, but you know the number of ­­ hospitals are accurately reporting.

Scott A. Keller: Well, abortion clinics are ­­ have to report complications in Texas. And Petitioner Whole Woman's Health ­­ and this is at JA 606­700 ­­

Justice Sotomayor: Complications within their clinic?

Scott A. Keller: That's right. And in JA 606­700, Petitioner Whole Woman's Health ­­

Justice Sotomayor: What's the percentage of Alderson Reporting Company Official 1 210 from 70,000? My math is pretty horrible. It's pretty small.

Scott A. Keller: And ­­ and the statistic at JA 266 is it is lower than 1 percent. However, when there are two to three women ­­

Justice Sotomayor: I don't mean to ­­ to negate that one should try to avoid injury to anyone, and ­­ and don't take my question as that, but there are people who die from complications from aspirin. May be unusual, but there's a certain percentage that do that. Yet, we don't require that people take aspirins in ASC centers or in hospitals.

Scott A. Keller: But in examining ­­

Justice Sotomayor: There has to be some tie between the benefit and the burden, doesn't there?

Scott A. Keller: In examining not effect, but the purpose. The constitutional analysis would be did the Texas legislature have an invalid purpose? And if you ­­

Justice Sotomayor: Well, don't you think that you can read that from the fact that there are so many other medical treatments whose complication rates are so disproportionately higher, and the legislature is only targeting abortion when there is nothing about the figures before it that show a risk so unusual that it Alderson Reporting Company Official 1 needs greater attention?

Scott A. Keller: But that would have been Simopoulos; it would have been Mazurek. And this is why Petitioners are trying to upset the balance that was struck in Casey.

Justice Breyer: I don't see where this fits in, I mean, to the argument. I ­­ I don't question their purpose. I won't question their purpose.

Scott A. Keller: Good. Thank you, Justice Breyer. (Laughter.)

Justice Breyer: But the ­­ the ­­ what their purpose is, that they're worried about these complications and they want to make life safer for the women. All right? Let's take that as the purpose. You said there aren't very many complications. Now, would you say if you reduce the number of clinics, as has been argued ­­ maybe it isn't exactly that, but that ­­ and you ­­ you suddenly have at least 10,000 ­­ maybe a few less, and maybe a few more ­­ women who have to travel 150 miles to get their abortion ­­ maybe more, maybe stay overnight, maybe try to scrape together the money, you understand the argument ­­ are there going to be more women or fewer women who die of complications due to an effort to Alderson Reporting Company Official 1 create an abortion? I mean, you read the briefs, and you've read the same articles I have. And of course the argument is if you lead to self­induced abortion, you will find many more women dying. So if the concern is this tiny risk of dying through a complication in a clinic, is this a remedy that will in fact achieve the legislature's health­saving purpose?

Scott A. Keller: Justice Breyer, about self­induced abortion, the evidence in the record on that were two points of testimony, both from McAllen where Petitioners prevailed, as­applied challenges could be brought in areas ­­ for instance, if there could be shown a substantial obstacle based on travel distance, the four clinics that closed in West Texas between El Paso and San Antonio, all those closed before the admitting­privileges requirement took effect. They were all Planned Parenthood facilities. In Petitioners' first ­­

Justice Ginsburg: Keller ­­ Keller ­­

Justice Breyer: I'd like to hear what he says.

Justice Ginsburg: As­applied challenge is a real problem with that, because suppose you bring in that as­applied challenge and you're successful. You Alderson Reporting Company Official 1 can't have a creation of an ambulatory surgical center on the spot. I mean, these ­­ these ­­ once ­­ once these facilities are closed, they're closed, and they can't start up tomorrow. So how ­­ the as­applied challenge ­­ I mean, the woman's problem would be long over before this clinic, the kind of clinic they had before, could be restarted.

Scott A. Keller: Justice Ginsburg, the McAllen clinic reopened, and as Justice Kagan mentioned, clinics did reopen. The Lubbock facility, though, which is one of the facilities in West Texas, in Petitioners' first lawsuit they told this Court in their application that that clinic was going to close regardless. And seven of the eight clinics that closed before the admitting­privileges requirement took effect, and went from 41 to 33, seven of those eight were Planned Parenthood clinics. Planned Parenthood is complying with the law and providing that increased standard of care. And also, the eleven clinics that closed the day that the admitting­privileges requirement took effect, when it went from 33 to 22, I don't believe six of those clinics can be deemed to have ceased performing abortions because of that requirement. The Lubbock Alderson Reporting Company Official 1 facility was going to close anyway. Killeen had admitting privileges. That's JA 401.

Justice Ginsburg: There was a stipulation ­­ there was a stipulation that is "No currently­licensed abortion facility meets the ASC requirements. Each will be prohibited from performing abortions after the day the law goes into effect." That's a stipulation, not a question of what evidence there was for. Texas stipulated that no currently­licensed facility meets ASC requirements, and each will be prohibited from performing abortions.

Scott A. Keller: And that would go to the ASC requirement as opposed to the facial challenge of the admitting­privileges requirement. But four of the facilities that reopened ­­ four facilities reopened of those eleven when the admitting­privileges requirement went into effect. That was Dallas, two at Ft. Worth, one in Austin. That's JA 131, 715, 1111 and 1436. Two of those were ASCs. Now, when it comes to the count of ASCs, there are nine ASCs performing abortion today in Texas. Three opened up after House Bill 2 was passed. So in examining the facial challenge to that requirement, when ASCs exist ­­ Alderson Reporting Company Official

Justice Sotomayor: Can I ask: Were they opened as a result of the law, or were they planned to be opened before the law went into effect? Because I think that makes a difference to me if they were planned to be opened. It takes quite a while to dig up the money, get the investors, buy the land, do the building. It seems to me that they must have been planned for a while. And if they were, it was because there was a need independent of the number of abortions.

Scott A. Keller: Well ­­

Justice Sotomayor: In other words, it's fortuitous that they've come into existence, but it was in ­­ their need was not there ­­ was independent of the reduced number of facilities elsewhere.

Scott A. Keller: Legislature provided 13 months to come into compliance. In addition, you could lease space. Texas has over 430 ­­ there are 433 general ASCs in Texas at the time of trial.

Justice Sotomayor: But most of them don't choose to provide abortions.

Scott A. Keller: That's correct. Of course, space could be leased in those.

Justice Sotomayor: So what you don't know is what ­­ do you have enough resources to open up an ASC if you're going to do abortions? Are you going to Alderson Reporting Company Official 1 get enough developers to ­­ to invest in your work?

Scott A. Keller: Yeah. The point being that there are going to be at least ten clinics ­­

Justice Sotomayor: Can I ask about McAllen? There was testimony in the record that at least four doctors had ­­ from that spot had asked for admitting privileges. Well, the Fifth Circuit's remedy only provided for one doctor, Dr. Lynn, who's past retirement age, to be the only doctor performing abortions in that clinic. Now, if the clinic had ­­ I don't know how many it had, but it had at least four people before ­­ it seems rather callous to say as a remedy that we're going to make that one doctor do the work of four, or maybe more doctors who didn't get admitting privileges. Why is even the Fifth Circuit's remedy reasonable?

Scott A. Keller: Because, Justice Sotomayor, that was the only named plaintiff for the as­applied ­­

Justice Sotomayor: But that ­­ but ­­ if ­­ yes. As applied, the A ­­ ASC law is affecting this clinic because it can't get its doctors certified. So why does it require a named plaintiff to relieve that clinic of the obligation of going without admitting privileges?

Scott A. Keller: Well, that wasn't the only one Alderson Reporting Company Official 1 of the four doctors that joined this lawsuit, because most of the doctors and clinics in Texas are not part of this lawsuit ­­

Justice Sotomayor: But you just lift the requirement because you know that it's the only clinic in the area.

Scott A. Keller: Well ­­

Justice Sotomayor: So if any doctor who's licensed appropriately can get admitting privileges, they should be permitted to work in that clinic. Why does Dr. Lynn have to become an indentured slave to ensure that women in her area are provided with their fundamental right to choose?

Scott A. Keller: Justice Sotomayor, it would not be an indentured situation. If there were new facts that came into being that that doctor ­­

Justice Sotomayor: But she wants to leave ­­

Scott A. Keller: ­­ didn't perform abortion, then another doctor could bring in a future as­applied challenge ­­

Justice Sotomayor: All right. Counsel ­­

Justice Kagan: General, could ­­ could I ask ­­ could I go back to a question that ­­ something that you said earlier? And tell me if I'm misquoting Alderson Reporting Company Official 1 you. You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?

Scott A. Keller: Correct, in this Court's ­­ in Simopoulos.

Justice Kagan: And I guess I just want to know why would Texas do that? (Laughter.)

Scott A. Keller: When there are complications from abortion that's in the record, Texas can enact laws to promote safety.

Justice Kagan: No, I know, but ­­ but the assumption of the question, and I think you haven't challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And ­­ and you're saying, that's okay, we get to set much higher standards for abortion. And I just want to know why that is.

Scott A. Keller: Justice Kagan, this bill was Alderson Reporting Company Official 1 passed in the wake of the Kermit Gosnell scandal that prompted Texas and many other States to reexamine their abortion regulations.

Justice Kagan: But, of course, the ­­ I mean, Texas's own regulations actually have made abortion facilities such that that can never happen, because you have continual inspections, I mean, to your credit. So that was really not a problem in Texas, having a kind of rogue outfit there. Texas has taken actions to prevent that. So, again, I just sort of ­­ I'm left wondering, given this baseline of regulation that prevents rogue outfits of ­­ like that, why it is that Texas would make this choice. And you say you're allowed to make this choice, and we can argue about that. I just want to know why Texas would make it.

Scott A. Keller: I think the amicus brief for the 121 Texas legislators that canvasses the medical evidence and canvasses statements confirms that that ­­ that there were complications that these laws do have benefits. And even the bill opponents said ­­

Justice Alito: Isn't it true ­­

Justice Kagan: Are you ­­ are you in ­­ you're not really contesting that there are greater complications in abortion facilities than there are with Alderson Reporting Company Official 1 a great deal of medical procedures that do ­­ that are not subject to the same standard of regulation.

Scott A. Keller: Yeah, brain surgery, for instance, just like Simopoulos, would almost certainly have ­­ it ­­ it would have higher risk of complication. But the point is to ­­

Justice Alito: General, as to ­­ as to rogue facilities, which Justice Kagan just mentioned, one of the amicus briefs cites instance after instance where Whole Woman's facilities have been cited for really appalling violations when they were inspected: Holes in the floor where ­­ where rats could come in, the lack of any equipment to adequately sterilize instruments. Is that not the case?

Scott A. Keller: Stories similar to that are also raised in the 121 Texas legislators' amicus briefs.

Justice Sotomayor: But, I'm sorry ­­

Justice Alito: These are not stories ­­

Chief Justice Roberts: Justice Alito.

Justice Alito: These are, as I understand it, actual reports of ­­ of inspections of those facilities.

Scott A. Keller: The amicus briefs do discuss that, and the complications from Whole Woman's Health were underreported to the State. That's JA 606 to 700. Alderson Reporting Company Official

Justice Ginsburg: Random ­­ Texas, under the prior law, has the right to make random inspections. Was ­­ the problem in Pennsylvania was this filthy clinic hadn't been looked at by anyone from the State in 16 years. But Texas can go into any one of these clinics and immediate ­­ immediately spots a violation? It says you can't operate till you come up to speed. So Texas has had, as Justice Kagan pointed out, its own mechanism for preventing that kind of thing from happening.

Scott A. Keller: Texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of ­­

Justice Sotomayor: It's valid only if it's taking care of a real problem.

Scott A. Keller: And there were ­­ the ­­ abortion complications and underreported questions ­­

Justice Sotomayor: Well, no, no, no. A real problem, meaning, Gosnell, the governor of Pennsylvania, said was a regulatory failure. And only in that, not ­­ this clinic had not been inspected for 15 years. He ­­ the doctor was fabricating his reports. That could happen almost in any setting. Anyone who intends to break the law is going to break the law, whatever the regulatory rules are. Alderson Reporting Company Official 1 You're going to have doctors, as happened pre our laws, who were performing abortions without permission in their offices or without licenses. And I don't want to suggest that we should presume that's going to happen, but it will happen.

Scott A. Keller: The constitutional standard for whether a State can make abortion safer can't be that it can only prevent the Gosnell situation, and there are complications.

Justice Sotomayor: Well, but ­­ yeah, but ­­ but you have to see, as Justice Breyer asked you earlier, why are the problems? Isn't this a self­created problem? What happened in Texas independent of Gosnell that raised the Gosnell­like situation in Texas that made ­­

Justice Alito: Gosnell.

Justice Sotomayor: ­­ the legislature so concerned after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non­ASC facilities?

Scott A. Keller: Because there are complications in abortion, and this was a top ­­

Justice Sotomayor: But there's complications in colonoscopies, and colonoscopies are, what, 15 times ­­ Alderson Reporting Company Official

Justice Breyer: .

Justice Sotomayor: . Justice Breyer just corrected me. (Laughter.)

Justice Sotomayor: percent higher. I mean ­­

Scott A. Keller: But legislatures react to topics that are of public concern. In Gonzales, the Court noted after Dr. Haskell's procedure for partial birth abortion became more of a nationwide concern, States reacted. When the legislature sees that there's a problem, and maybe that there wouldn't rise to the same level of a Gosnell problem, but the legislature can still act to make abortion safer, which is precisely what Texas did here. If I can address my friend's contention of the record as to what clinics closed preemptively. There is evidence in the record that Killeen, McCallen and El Paso, three clinics, closed preemptively. They brought as­applied challenges in McCallen and prevailed. They brought their as­applied challenge in El Paso and did not prevail. And the Killeen clinic did not seek as­applied relief. Indeed, if there are any future concerns, as­applied challenges can be raised. For instance, the Alderson Reporting Company Official 1 wide swath of area in West Texas that does not have an abortion clinic today, there was no as­applied relief sought in this case. And if there were ­­ if it would turn out that there were going to be an issue in that area, a future as­applied challenge could address that concern.

Justice Ginsburg: Well, that's the problem. Once a clinic closes ­­ you said McCallen reopened, but that was very swift. Once a clinic closes, equipment are gone, the doctors are gone, you can't reinstate it tomorrow. It won't be there. There will be no remedy for that woman who succeeds in the as­applied challenge.

Scott A. Keller: Mr. Chief Justice, my time has expired, if may address it.

Chief Justice Roberts: Sure.

Scott A. Keller: Except even there, the clinic was not just closed for a single day. It was closed for a longer period of time. And there was an El Paso clinic that actually reopened also months later. So an as­applied challenge could allow a clinic, if an undue burden, if a substantial obstacle were shown because of driving distances or capacity in the future, in that discrete instance, but we're in this facial challenge posture, Petitioners bear the heavy burden to show at least a large ­­ Alderson Reporting Company Official

Justice Sotomayor: Why isn't that self­evident in any area that's ­­

Justice Kennedy: Sonia is off.

Justice Sotomayor: This area of western Texas, it's as big as California. No? Bigger?

Scott A. Keller: I'm not sure about California, but it certainly is a large size.

Justice Sotomayor: Huge area.

Scott A. Keller: Absolutely.

Justice Sotomayor: Why isn't it self­evident if you have a law that says you can only be an ACS provider, and who's going to come in and say, I can't be an ACS provider, but it's an undue burden on me, or it's an undue burden that's self­evident on the women in that area?

Scott A. Keller: Well, the right is possessed by the women. The clinics and doctors can bring challenges.

Justice Sotomayor: Exactly. So why don't we take this lawsuit as those women saying just that?

Scott A. Keller: Because there was no ­­

Justice Sotomayor: You can't have a law that has marginal, if any, medical benefit be applied to this procedure anywhere where there's an undue burden on people ­­ on women. Alderson Reporting Company Official

Scott A. Keller: Planned Parenthood had four clinics in West Texas. They all closed before any part of HB2 was actually put into effect. They could have brought an as­applied challenge. They didn't. Planned Parenthood did not join this lawsuit. They were part of the first lawsuit. And indeed, the facial challenges here are barred by res judicata and there are significant record gaps.

Justice Ginsburg: May I ask you one question? You earlier in your argument, you were quoting how many women are within a reasonable range of the clinic. But don't we know from Casey that the focus must be on the ones who are burdened and not the ones who aren't burdened? There ­­ there is ­­ and the district court said, you know, this is not a problem for women who have means to travel, that those women will have access to abortion, anyway. So ­­ in Texas or out of Texas. So Casey was quite precise in this, when it's talking about husbands and notification. You don't look to all the women who are getting abortions. You look only to the ­­ to the ­­ the women for whom this is a problem. And so the only women we would be looking at is not all of the women who are ­­ who live in Austin or in Dallas, but the women who have the problem who don't Alderson Reporting Company Official 1 live near a clinic.

Scott A. Keller: Well ­­

Justice Ginsburg: Isn't that the clear message of Casey and the husband notification ­­

Scott A. Keller: When a law ­­

Justice Ginsburg: ­­ exception?

Scott A. Keller: When a law is regulating women, as it would in the spousal­notification provision, that might be different. But when we're talking about doctor and clinic regulations, when the law is going to have a relevant effect, is going to be for every doctor and every clinic, which is precisely why the Fifth Circuit noted that that was the proper denominator, all women of Texas reproductive age. And Petitioners have not challenged that denominator holding in their opening brief.

Justice Ginsburg: But this is about ­­ what it's about is that a woman has a fundamental right to make this choice for herself. That's what we sought as the starting premise. And then this is certainly about ­­ Casey ­­ Casey made that plain, that it ­­ the focus is on the woman, and it has to be on the segment of women who are affected.

Scott A. Keller: Yes. And ­­ and the right held by women to make that ultimate decision is not burdened Alderson Reporting Company Official 1 in, at a minimum, a large fraction of cases in Texas, when each metropolitan area will still have a clinic, even after the law goes into effect, and future as­applied challenges could address any possible concerns about West Texas or otherwise.

Chief Justice Roberts: Thank you, counsel.

Scott A. Keller: Thank you, Mr. Chief Justice.

Chief Justice Roberts: Ms. Toti, you have five minutes remaining. REBUTTAL ARGUMENT OF STEPHANIE TOTI ON BEHALF OF THE PETITIONERS

Stephanie Toti: Thank you. A few brief points. First, the record cites from earlier evidence that HB2 caused clinics to close in Texas. The plaintiffs testified that HB2 caused clinics in Killeen, Austin, Beaumont, McAllen, and El Paso to close, and that testimony is at JA 339, 715, 722 and 731. Respondents stipulated at JA 183 and 184 that the ASC requirement would cause any licensed abortion facility still operating on the day it took effect to close. Plaintiffs' Exhibit 28 at page 2, which is not in the Joint Appendix but was admitted in the record at 2808 and 09, demonstrates that for the five years Alderson Reporting Company Official 1 prior to the enactment of HB2, the number of abortion clinics in Texas remained fairly constant. And finally, at JA 229 and 1430, there is ­­ at 229, testimony from Dr. Grossman, and at 439, our response to the Fifth Circuit's directive showing that 11 clinics closed on the day that the admitting­privileges requirement was ­­

Chief Justice Roberts: And that ­­ that's the ­­ the last evidence was from Dr. Grossman?

Stephanie Toti: JA 229 is from Dr. Grossman's.

Chief Justice Roberts: At page 232, he said, "I am not here offering any opinion on the cause of the decline in the number of abortion facilities."

Stephanie Toti: That's correct. Dr. Grossman did not offer an opinion on that. But his testimony supplies the fact, from which the district court drew the inference, that 11 clinics closed on the day that the State first enforced the admitting­privileges requirement. The district court referred from that fact that enforcement was the cause of the closure, and Respondents offered no alternative explanation for why there would be such a precipitous drop in the number of abortion ­­

Justice Sotomayor: Can you tell me why Planned Parenthood left the western area? The General Alderson Reporting Company Official 1 says that Planned Parenthood ­­ that ASC and the ­­ and the admitting privileges had nothing to do with the closures in the western area of Texas.

Stephanie Toti: Well, the ­­ the two clinics in El Paso, which is in ­­ in ­­ in that western region of Texas that would be forced to close as a result of these requirements, are not operated by Planned Parenthood. Planned Parenthood doesn't have any clinics in Texas. The plaintiff in this case and another independent provider operate those clinics.

Justice Alito: And as to the ­­ the clinics where there is direct evidence, does the direct evidence show whether the cause was the admitting­privileges requirement or the ASC requirement or both?

Stephanie Toti: It ­­ it ­­ with respect to ­­ it does specify. And some specify the admitting­privileges requirement, and some specify the ASC requirement. And some specify both. So with respect to whether abortion can be regulated differently than other medical procedures, abortion can certainly be treated differently, if there is a reason to treat it differently. But Texas may not impose unnecessary medical regulations that burden women's access to abortion. In Simopoulos, the Court found that the Alderson Reporting Company Official 1 regulations of second­trimester procedures at issue in that case were consistent with prevailing medical standards at the time, and that was critical to the court's decision. That is not the case here. There is extensive testimony in the record that these requirements are not medically justified. They are not consistent with prevailing medical standards, and their amicus briefs from leading medical associations, including the AMA and ACOG, confirming that.

Justice Alito: Do you think that Federal district judges or this Court is well qualified to determine whether there is a different risk, regard ­­ with respect to abortion, as compared to other procedures, that may or may not have to be required ­­ may or may not have to be performed in an ­­ in an ASC?

Stephanie Toti: Your Honor, district courts are quite competent to determine the credibility and the reliability of expert testimony. That's something that's within the core competence of a trial court. And the trial court in this case determined that there was no credible or reliable evidence supporting Texas's contentions about the medical justification for these laws. And, further, had Texas truly believed that Alderson Reporting Company Official 1 these laws provided some important benefit for outpatient surgery, it would have made them generally applicable. All outpatient surgical providers would have to have admitting privileges or practice in an ASC, but that's not the case. Texas law expressly authorizes other surgical procedures, including those performed under general anesthesia ­­ which early abortion is not ­­ to be performed in the physician's office. And even other physicians that operate at an ASC aren't required to have admitting privileges. The facility is merely required to have a transfer agreement. So these regulations target one of the safest procedures that a patient can have in an outpatient setting for the most onerous regulations.

Chief Justice Roberts: Thank you, counsel.

Stephanie Toti: Thank you.

Chief Justice Roberts: The case is submitted. (Whereupon, at 11:28 a.m., the case in the above­entitled matter was submitted.) 24 Alderson Reporting Company OOffffiicciiaall Page 78 A 60:9,20,25 61:9 53:15 73:24 16:3,7 41:7 42:15 area 37:20 40:4 67:2,19 71:21 admitting 3:21 49:8,10,15,17 62:6,12 69:1,5 a.m 1:15 3:2 77:21 above­entitled 1:13 4:14,15 5:17 12:7 58:1 70:2,4,8,15 73:2 abandonment 43:7 77:22 37:12,17,24 46:6 amended 4:3 74:25 75:3 Abbott 4:1,7 8:1 absolutely 13:25 47:6,20 59:2 61:6 Amendment 20:16 areas 36:21,24 45:18 14:18 21:16 23:13 61:15,23 62:9 American 21:20 49:17 57:13 ability 38:2 53:8 70:9 75:2 77:5,12 24:19 35:12 53:21 arguable 48:5 able 6:8 9:24 11:20 absorbed 17:10 admitting­privile... amicus 1:21 2:7 argue 64:15 16:23 28:9 29:17 accept 40:19 51:3 9:1 28:8 21:17 24:6 49:3 argued 3:22 56:18 29:25 30:1,18 acceptable 35:18 admitting­privile... 53:22 54:5 64:17 arguing 34:19 35:14,15 52:5 access 3:16 17:18 5:13 9:7,19,25 65:9,16,23 76:9 argument 1:14 2:2 abortion 3:13,16 20:6,14 22:9 11:3,5 14:4 22:5 ample 29:2,18 2:5,9,12 3:3,7 8:20 9:21,24 16:4 38:15 40:24 42:3 29:4,7 30:10,21 analysis 38:13 4:19 5:22 6:8 17:18,20 18:22 52:17,18 71:17 41:4 43:8 57:17 39:25 52:20 55:17 24:5 28:2 36:9 19:21 20:1,5,14 75:24 58:16,22 59:15,17 analytical 52:12 37:13 40:19 43:12 20:18,19 21:19,25 accessible 36:21 74:7,18 75:13,16 anesthesia 77:9 49:24 56:7,24 22:1,2,9,19,21,25 account 10:21 adopted 8:3,14,16 annual 17:5 57:3 71:10 73:10 23:8,12 24:12,13 16:10 39:6,24 8:20 annually 29:25 arises 42:24 25:22,23 27:9 accurate 33:18 adoption 8:15 33:13 45:24 46:10 arose 28:2 33:6,7 36:18,20 accurately 54:17 advance 29:13 53:15 arrangement 47:11 36:22 37:23 38:16 achieve 18:25 57:7 advancing 18:14 anticipation 7:16 47:18 40:3,25 41:13,13 acknowledged 41:2 affidavit 33:10,11 11:18 articles 57:3 42:18,24 44:18 ACOG 76:10 affirms 36:23 Antonio 10:12 as­applied 37:5 47:6 48:14,15,21 ACS 22:25 70:12 afford 17:15 36:13 15:11 57:16 38:13,14 44:17 50:6,10,15,18,21 70:13 afforded 45:9 anybody 50:13 46:12 57:12,23,25 51:23 53:10,16,22 act 44:14 46:1 age 37:4 38:18 61:9 anyway 8:10 59:1 58:5 61:18 62:20 54:4,10,18 55:24 68:14 72:14 71:17 68:20,21,23,25 56:22 57:1,4,10 acted 26:13 36:18 agree 25:9 apologize 31:12 69:2,5,12,20 71:4 59:5,22 62:19 acting 50:2 agreement 77:13 appalling 65:11 73:4 63:6,16,24 64:3,6 action 4:4 AL 1:3,8 appeals 4:9,9 10:20 ASC 7:25 8:19 9:2 64:25 66:17 67:7 actions 64:10 Alito 5:19 6:11,15 APPEARANCES 9:8,11,22 10:9 67:22 68:10,14 actual 5:12 7:17 12:3,9,14,18 13:8 1:16 14:8,22 15:24 69:2 71:17 73:21 32:3 65:21 13:16 16:2,19 appellate 31:5 16:13 24:2,24 74:1,13,23 75:19 addition 31:20 24:23 25:2,3,6,20 Appendix 73:24 25:23 28:5,9,16 75:21,24 76:14 60:16 26:24 27:2,16 applicable 77:3 28:25 29:25 30:1 77:9 additional 28:25 32:2,13,16,21,23 application 26:17 30:24 31:20 32:11 abortions 16:14,14 33:1 36:14 33:3 51:19 64:22 45:17 58:13 37:4,11,17 41:4 16:24 17:5,6 address 3:18 17:12 65:7,18,19,20 applied 51:11 45:23 46:9 49:21 18:14,15 22:8,25 28:1 68:16 69:5 67:16 75:11 76:11 61:20 70:23 49:23 55:11 59:5 24:16 29:24 30:23 69:14 73:4 allegations 4:18,19 apply 26:20 59:11,13 60:25 31:21,24 32:8 adequately 65:13 allow 69:20 appointment 10:14 61:20 73:20 75:1 33:4,12 38:11 adjective 15:11 allowed 63:2 64:15 appropriate 8:23 75:14,17 76:16 42:8,9,19 43:15 adjusted 16:15 alternative 74:21 27:20,23 77:5,11 43:16,18,22,22 admission 9:10 AMA 76:10 appropriately 62:9 ASCs 33:1,4 36:20 44:13 45:3,5,20 10:14 47:19 amazing 32:7 approximately 37:24 45:4 46:4 45:24 46:10,15 admitted 51:4 ambulatory 7:19 12:16 29:24 33:16 46:11 59:20,21,22 58:25 59:7,12 AAllddeerrssoonn RReeppoorrttiinngg CCoommppaannyy Official Page 79 59:25 60:17 basic 27:8,24 67:11 68:1,2 capability 15:13 centers 7:19 16:3,7 asked 4:3,6 10:6,8 Basically 5:21 brief 10:21 13:18 capacity 14:24 15:2 49:18 55:12 40:16 46:16,21 basis 4:13 5:4,7 40:8 64:17 72:16 15:7,13,19 16:20 certain 48:6 55:10 48:23 61:6 67:11 11:8 17:5,22 18:2 73:13 28:3 29:20,23 certainly 8:4 14:21 asking 4:17 42:10 18:4,7,19 19:7 briefing 4:4,6 31:8,19 32:3,10 15:20 34:13 43:10 47:2 48:19 24:17 40:13 52:20 briefs 21:17 33:11 33:1 39:22 44:22 43:20 65:4 70:7 aspect 42:20 bear 69:24 49:3,11 53:23 44:23 45:6,8,13 72:20 75:21 aspirin 55:9 Beaumont 73:16 54:6 57:2 65:9,16 69:22 certificate 26:5 aspirins 55:11 behalf 1:17,23 2:4 65:23 76:9 care 36:20 37:23 certified 61:21 asserted 20:2 2:11,14 3:8 36:10 Brigham 50:9 43:6 50:12 51:21 challenge 4:20,20 assess 9:12 73:11 bring 5:3 6:13 51:24 58:20 66:12 5:14 9:1,6,6,9 assessing 9:9 19:5 believe 39:5 41:3 27:12 57:24 62:20 66:15 67:18 18:1,11 38:13,14 association 21:20 46:13 51:1 58:23 70:17 careful 3:11 38:15 39:8,20 21:21 24:20 35:13 believed 76:25 brought 4:7 57:13 carefully 27:21 41:24 43:9 57:23 associations 76:9 believes 27:20 68:20,21 71:4 case 3:4 4:1,6 5:20 57:25 58:6 59:14 assume 3:20 8:5 beneficial 15:16 Bryan 13:5 6:13 7:20 8:1 59:24 62:21 68:21 9:8,12 18:10,10 43:5 build 15:13 9:15 13:2 16:22 69:5,12,20,23 assuming 40:19 benefit 21:12,18 building 28:23 60:6 16:23 17:8 19:19 71:4 assumption 19:7 35:19 40:6,10,21 burden 6:16 8:12 21:14 24:11 26:19 challenged 19:8 63:19,20 41:6,7 42:14 47:3 9:10,12 17:20 27:22 32:5 42:23 40:20 44:16 63:20 attempted 8:22 48:8,22,25 49:13 18:6,19,22,23,24 51:19,20 65:14 72:15 attention 4:8 56:1 52:1 55:15 70:23 19:3,5,8,11,14,15 69:3 75:9 76:2,5 challenges 36:17 Austin 1:23 10:11 77:1 19:24 20:18 34:8 76:21 77:6,19,21 57:12 68:20,25 59:19 71:24 73:16 benefits 17:22 34:9,20 35:18,21 cases 7:16,17 39:9 70:18 71:6 73:4 authority 43:16 40:25 41:3 50:15 35:21 39:11,21 73:1 challenging 9:11 44:8 64:21 40:4,6,21 46:20 Casey 3:12 19:15 changes 15:10 authorizes 77:7 best 35:20,22 48:20 49:1 51:22 20:4,13 24:12 chart 45:19,25 available 5:1 37:13 better 51:8 52:1,13 55:15 34:2,16 36:5 check 43:6 average 33:13 beyond 32:22 34:5 69:21,24 70:13,14 39:12,17,20 40:23 checked 25:21 avoid 55:7 big 70:5 70:24 75:23 49:20,21 52:15 Chief 3:3,9 4:17 Ayotte 26:19 27:22 Bigger 70:5 burdened 48:22 56:5 71:12,19 6:23 7:7,9 8:25 bill 13:11 41:22 71:13,14 72:25 72:4,21,21 9:5 10:5 11:11 B 59:23 63:25 64:21 burdens 8:21 17:18 categories 52:13 17:13,16,21,25 B 1:19 2:6 14:25 binding 6:6 30:13 20:8,10,14 21:24 causation 29:19 18:9 19:1,23 24:5 birth 68:10 22:1 34:4 cause 6:22 73:20 22:12,14 23:16 back 21:1 42:25 bit 13:17 burdensome 9:18 74:12,20 75:13 24:3,8 34:10,15 47:1,15 62:24 books 25:14 10:2 caused 9:13 29:10 35:6,7 36:7,11,12 backdrop 30:8 border 38:9 buy 60:6 73:14,15 36:15 45:7,11 balance 3:12 20:4 bore 46:20 causes 30:10 65:19 69:13,15 34:1,2 56:4 brain 49:23 65:3 C causing 18:14 73:6,7,8 74:8,11 barred 7:22 43:10 break 66:24,24 C 2:1 3:1 cease 28:10,11 77:17,19 71:7 Breyer 10:5 11:25 California 70:5,6 ceased 58:24 childbirth 53:19 bars 36:17 33:9,20 46:16,21 called 22:16 center 13:5 41:8 54:1 based 17:22 32:16 46:24 47:9,14,24 callous 61:13 42:5,7,15 43:1 choice 13:5 64:14 32:17,17 57:14 48:1,3,13,16 56:6 cancer 23:21 49:4,8,10,15 64:15 72:19 baseline 64:12 56:10,12 57:9,21 canvasses 64:18,19 53:21 58:1 choose 60:20 62:13 Alderson Reporting Company Official Page 80 Circuit 30:11 43:24 36:22,22 37:23,24 community 42:7 50:16 15:1,18 16:9,10 44:18,22 72:12 38:6 42:18 44:21 compare 18:24 confronted 26:12 18:4 19:17 24:9 Circuit's 61:7,16 44:25 54:18 56:18 compared 25:22 confronting 24:16 24:12,21 25:17 74:5 57:15 58:10,15,18 34:12,14 38:24 consider 4:10 18:23 26:12,13,19,20 circumstances 40:2 58:21,24 61:3 49:16 53:18 76:14 19:14 21:21 27:3,20,22 31:4,4 40:5 62:2 66:6 68:17 competence 43:6 considered 24:12 34:6,7 36:5,16,23 circumstantial 68:19 70:17 71:2 76:20 consistent 76:2,8 39:13 40:9 45:18 45:13 73:14,16 74:2,6 competent 76:18 constant 74:2 45:22 46:17 49:20 citations 13:22 74:17 75:4,8,10 complete 23:5 constitutional 51:16 58:13 68:9 cited 65:10 75:11 completely 27:6 55:17 67:6 71:15 74:16,19 cites 65:9 73:13 close 4:15 5:18 9:23 52:12 construction 28:16 75:25 76:12,20,21 cities 32:1 46:8 58:14 59:1 73:14 compliance 60:16 contention 68:16 court's 6:21 15:5 claim 3:19,19,25 73:17,22 75:6 complication 41:11 contentions 76:23 15:23 26:20 44:16 7:21,22 12:4 18:4 closed 5:21 7:5,14 41:12,16,17 42:18 contesting 64:24 50:17 52:21 63:10 18:5 7:15 11:2,2,4,9,16 42:21,24 44:13 contextual 38:12 76:4 claiming 12:10 11:18 12:4,7,10 54:7 55:22 57:6 continual 64:7 courts 31:6 76:17 claims 3:21 4:18 12:13,22,24 13:10 65:5 continue 11:20,23 CPR 26:5,7 5:7 7:25 14:4,17 16:1 28:7 complications continuity 43:5 create 3:16 57:1 class 11:17 29:5,7,13 31:1,22 43:23 47:17,22 controlled 14:15 creation 58:1 clause 25:18 26:14 32:24 57:15,16 53:16 54:10,13,19 core 76:20 credibility 76:18 26:15,16 58:4,4,15,21 54:21 55:9 56:14 correct 6:9 7:24 credible 76:22 clear 8:10,12 72:3 68:17,19 69:17,17 56:17,25 63:15 14:5,6,12,18 16:2 credit 64:8 clearest 52:21 71:2 74:6,17 64:20,25 65:24 18:20 20:21,24 credulity 46:13 clinic 4:14 5:11,18 closes 24:13 69:8,9 66:17 67:9,21,24 21:2,7 23:13 47:8 critical 76:3 5:21 6:22 11:20 closure 6:3 9:20 complied 46:6 47:11,13 48:4,7 cure 48:9 12:22,22 15:1,10 10:4 12:5 29:10 comply 9:25 49:5 54:14 60:21 cured 31:8 25:23 27:10 37:1 30:21 74:20 complying 58:19 63:10 74:14 curettage 22:17,18 38:8,19 40:3 43:4 closures 5:12 6:22 concede 18:7,15 corrected 68:3 curiae 1:21 2:7 45:19,19 47:6,10 7:6,10 28:2,4 42:23 correctly 44:22 24:6 54:22 57:6 58:7,7 45:14 75:3 conceded 51:1 corridors 27:11 currently­licensed 58:10,14 61:10,11 co­counsel 16:21 concern 57:5 68:8 cost 28:20,22,25 59:5,10 61:21,23 62:5,10 collection 26:21 68:10 69:6 costs 15:24 cut 13:11 66:4,21 68:22 collectively 10:2 concerned 15:17 counsel 23:16 24:3 D 69:2,8,9,16,19,20 collects 17:7 67:18 36:7 62:22 73:6 71:12 72:1,10,12 colonoscopies concerning 4:18 77:17 D 3:1 73:2 63:21 67:24,24 11:7 count 38:5 59:21 D&C 22:15,19,20 clinical 43:6 colonoscopy 49:9 concerns 68:24 countenanced 34:6 23:1,4,7 clinics 5:24 6:1 7:2 come 4:21 21:1 73:5 34:8 D&Cs 22:20 7:5,14,15 11:2,16 35:14,15 60:12,16 conclude 4:13 country 50:7,8 D.C 1:10,20 11:18,23,23 12:12 65:12 66:7 70:12 concluded 5:16 51:25 Dallas 10:11 59:18 13:19,21 14:16,25 comes 6:2 59:21 19:20 20:7 21:22 couple 6:25 71:25 15:6,14,19,25 COMMISSION... condition 23:18 course 25:18 42:8 dangerous 51:13 28:7,14,20 29:5 1:6 conditions 22:21 57:3 60:21 64:4 date 9:21 12:12 29:25 30:17,22 commitments 36:4 confirming 76:10 court 1:1,14 3:10 29:5,6,7,14 31:21,22 32:4,11 common 30:16,19 confirms 64:19 4:5,8,9 5:15 6:5 day 11:4 12:7 14:4 32:24,25 33:13 32:19,21 49:16 conform 50:10,14 10:9,20,24 11:8 49:17 58:22 59:7 Alderson Reporting Company Official Page 81 69:17 73:21 74:6 differently 50:18 46:6 48:15 51:1,9 52:16 55:16 57:17 41:25 43:9 44:15 74:17 75:20,21,22 61:6,15,21 62:1,2 58:16,23 59:7,18 evidence 4:10,11 days 4:4 21:1,6 dig 60:5 67:1 69:10 70:17 60:3 71:3 72:11 4:22,24,25 5:1,3,5 deadline 8:15 dilation 22:16,16 doctrine 40:13,16 73:3,22 5:10,11,16,20 6:2 deal 65:1 diminished 16:17 52:22 effective 29:6,8,13 6:13,18,20,24 decide 26:21 diminishment doing 40:11 50:13 effects 24:10 44:20 7:10,13 10:17,19 decided 3:22 10:23 51:11 effort 56:25 10:20,25,25 11:6 decision 4:5,11 6:5 direct 12:4,15,17 dollars 28:22,24 eight 10:23 11:2,7,9 11:12,14 12:4,15 19:21 38:3 52:5 13:3,19,20 14:21 29:1 36:14 46:11 58:15 12:17,21 13:3,14 72:25 76:4 75:12,12 DONALD 1:19 2:6 58:17 13:17,19,21 14:21 decisions 3:14 directed 19:9 24:5 either 10:12 11:18 15:4,12,21,22 decline 74:13 directive 74:5 doors 14:9 11:22 19:11 37:17 16:8,12,23 17:4 decrease 5:23 disagree 8:11 9:16 doubts 15:18 El 37:6,20 38:9,10 21:17 22:4,22 24:22 disagreement 51:3 dozen 14:9 38:15 39:7 57:15 23:2 28:13 29:2 deemed 58:24 discovered 4:25 5:3 Dr 28:19 30:3,15 68:19,21 69:18 29:11,13,18 32:2 defend 42:20 discovery 44:24 31:23 61:8 62:11 73:16 75:5 32:3 38:7 39:22 definition 34:9 discrete 7:21 52:12 68:9 74:4,9,10,14 elect 38:3 52:5 44:23 45:8,11,14 delayed 22:3 69:23 drastically 16:17 elements 40:13 46:17,18,19,22 delaying 22:9 discretion 31:4 draw 29:9 elevator 27:11 47:16 50:25 51:6 demand 15:8 33:6 discuss 65:23 drawn 45:6 eleven 58:21 59:17 53:4,24 54:9,15 33:7 46:14 disproportionately drew 74:16 enact 63:16 57:10 59:8 64:19 demonstrates 55:23 driving 69:22 enacted 29:6 68:18 73:14 74:9 73:25 dispute 53:23 54:1 drop 74:22 enactment 7:4 75:12,12 76:22 demonstration disputed 50:25 drug 41:21 16:13 74:1 exact 16:24 44:3 distance 39:12 42:5 drug­induced enforced 74:18 exactly 14:19 56:19 denied 18:4 57:14 41:12 43:22,22 enforcement 5:12 70:19 denominator 72:13 distances 41:21 44:13,18 5:13 7:16,17 examines 6:1 38:2 72:15 69:22 due 6:3 30:12 56:25 10:13 11:3,19 40:24 dentist 49:7 distinct 43:15 duty 48:19 16:17 74:20 examining 55:13 Department 1:7,20 distribution 17:6 dying 57:5,6 ensure 11:23 53:1 55:16 59:24 designed 19:20 district 6:21 10:8,9 62:12 example 19:16 48:5 E despite 26:13 10:24 11:8 15:5 entire 48:4 48:24 deter 15:25 15:23 18:4 24:21 E 2:1 3:1,1 entrances 27:9 examples 13:4 determine 18:21 25:16 26:12,13 earlier 45:4 62:25 entry 4:1 exception 72:6 19:13 76:13,18 27:3 31:3,4,9,15 67:12 71:10 73:14 equipment 65:13 excessive 34:11,12 determined 76:21 39:13 44:16 45:21 earliest 21:25 69:9 excuse 45:19 developed 3:25 71:15 74:16,19 early 20:18 22:2 equitable 31:5 exercise 19:25 4:25 76:12,17 54:4 77:9 ESQ 1:17,19,22 2:3 Exhibit 45:17 developers 61:1 dixit 30:12 45:1,2 early­stage 53:10 2:6,10,13 73:23 develops 5:5 doctor 4:13 5:17 economist 28:19 estate 28:17 exist 34:21 59:25 die 55:9 56:25 20:20 23:6,7,23 effect 5:15,22 9:20 estimate 45:20 existence 60:12 difference 6:11 32:8 47:5,20 61:8 9:22 10:10 11:5 estimated 45:24 existing 66:11 19:4,10 22:23 61:9,14 62:8,16 11:21 12:8 14:5,8 ET 1:3,8 exists 36:3 35:17 54:8 60:4 62:20 66:22 72:9 14:15,16,17 15:15 evaluate 40:6 expect 30:25 32:25 different 41:22 72:11 15:16 16:5,7 evaluated 34:23 experience 16:12 72:9 76:13 doctors 37:25 41:3 25:12 29:23 43:14 event 36:18 38:17 experiment 14:15 Alderson Reporting Company Official Page 82 expert 28:18 30:3 74:19 flimsy 35:12 26:8,25 27:15,19 67:5 69:4 70:12 30:14 32:14 39:6 fact­finding 45:22 floor 65:12 30:6 31:11,18 72:10,11 41:2 43:25 76:19 factor 9:7 22:19 flush 29:17 32:12,14,19,22 Gonzales 34:16 experts 51:1 factors 6:3 focus 71:12 72:22 33:19,21 35:1,7 68:8 expired 69:14 facts 3:25 4:8 62:15 focusing 18:6 47:4 50:5,9 51:7 52:21 good 20:9 51:7 56:9 explain 35:5 factual 44:2 follow­up 41:14 60:17 62:23 65:7 Gosnell 64:1 66:19 explanation 74:21 failure 66:20 following 7:4 16:13 74:25 77:9 67:8,14,16 68:13 exponentially fairly 7:3 74:2 16:17 22:5,6 generally 42:24 Gosnell­like 67:14 24:15 family 13:12 follows 23:6 77:2 government 35:2 expressly 18:1 77:7 far 15:16 31:25 footprint 28:17 geographic 17:6 35:14,22 extensive 76:6 34:5,7 53:8 forced 4:15 75:6 getting 17:3 26:10 governor 66:19 extent 8:12 Federal 8:5 76:11 form 21:25 71:21 grade 27:10 extra 17:14 36:15 Federation 48:14 Former 53:22 Ginsburg 3:17 7:18 grandfathering extreme 24:11,14 fee 29:15 Fort 10:11 13:20 17:9 18:18 8:17,18 extremely 9:18 fewer 15:7 38:25 forth 48:18 36:25 37:2,9 38:5 grant 33:10 40:1 10:2 56:24 fortuitous 60:12 41:5,11,16 42:1 great 50:8 51:9 Fifth 30:11 43:24 forward 5:4 6:13 42:10,13,21 47:2 65:1 F 44:18,22 61:7,16 6:18 36:4 53:2,18,25 54:3,5 greater 41:11 42:5 fabricating 66:22 72:12 74:5 found 10:24 24:21 57:20,23 58:9 43:23 44:13 56:1 face 8:13 22:11 figures 55:25 39:13 75:25 59:3 66:1 69:7 64:24 67:19 facial 4:20,20 36:17 filed 4:4 8:1 four 30:18 57:15 71:9 72:3,6,17 Grossman 30:15 38:14 39:8,18,20 filing 8:23 59:15,16 61:5,12 give 10:21 12:1 33:9 74:4,9,14 43:9 59:14,24 filthy 66:3 61:14 62:1 71:1 13:4 48:24 53:7 Grossman's 30:3 69:23 71:6 final 8:1 four­30:7 given 7:3 30:25 31:23 45:1 74:10 facially 6:6 finally 74:3 Fourteenth 20:15 31:12,14 35:18 groundless 24:20 facilities 9:21 12:20 find 36:2 47:16 fraction 39:7,9,19 44:9,12 64:12 35:13 14:9 16:25 24:13 48:4 51:9 57:4 73:1 giving 49:13 guess 49:3 63:12 24:14 30:1,17,24 finding 6:21 15:6 frankly 35:12 gleaned 38:21 30:25 45:21 46:7 15:23 16:11 friend's 68:16 go 7:18 12:18 25:21 H 46:14 50:10,15 findings 10:18,22 front 23:23 25:21 26:20 38:12 half 9:21 30:25 51:8 53:13 57:18 15:1 Ft 59:18 38:14 40:3 42:6 31:21 32:24 58:4,12 59:16,16 finish 22:13 33:22 fundamental 3:13 47:1,15 59:13 handle 33:1 60:14 63:4,6,6 first 3:19 5:2,6,14 20:6 62:13 72:18 62:24 63:22 66:5 happen 14:20 16:9 64:6,25 65:8,10 6:12,17 8:22 11:5 fundamentally goes 10:10 59:7 64:6 66:23 67:5,5 65:22 67:20 74:13 11:7 18:22 19:17 17:17 73:3 happened 6:1 facility 9:24 10:10 28:2,6 30:15 39:4 funding 13:12 going 13:21 14:24 47:23 67:1,13 20:23 21:13,20 41:11,15,20,23 further 15:1 38:22 16:9 20:13 22:3 happening 66:10 28:23 37:7,10 43:24 45:16,18 38:23 76:25 26:23 29:14,16 hard 32:18,18 38:10 43:5 46:11 46:5 47:5,5 48:23 future 62:20 68:24 30:17,18 31:6 harder 9:15 46:12 50:21 51:7 53:14 57:19 58:12 69:5,22 73:3 33:10,25 35:9,16 Haskell's 68:9 51:11 58:11 59:1 71:6 73:13 74:18 36:4 39:2,14 42:6 HB2 6:21 7:1,2,5 59:5,11 73:21 fit 28:17 G 42:22 43:4 46:10 11:2 23:9 35:25 77:12 fits 56:6 G 3:1 48:9 50:10 52:19 71:3 73:14,15 fact 18:8 25:12 five 7:1 17:14 30:18 gaps 71:8 56:24 58:14 59:1 74:1 36:4 45:2 54:11 46:3,7 73:9,25 general 1:19,22 60:25,25 61:3,14 health 1:3,7 3:4,15 55:21 57:7 74:16 five­fold 30:7 24:4,8,25 25:5,9 61:23 66:24 67:1 13:11 18:13,17 Alderson Reporting Company Official Page 83 23:11 24:22 28:15 hospitals 50:8,11 21:24 63:5 76:10 intended 18:24 6:11,15,23 7:7,9 40:10,17,25 50:15 54:12,14,17 55:12 77:8 intends 66:24 7:18 8:4,25 9:5 52:24 53:3,6,13 hotel 21:5 increase 18:14 22:7 interest 18:13,16 10:5,6 11:11,25 54:20,24 65:24 hour 39:14 24:22 25:25 30:7 19:19 20:2,5 12:3,9,14,18 13:8 health­related 50:6 hours 39:15,17 30:18 31:2 43:15 34:22,22 35:2 13:16,20 14:2,7 health­saving 57:8 House 59:23 50:12,15 51:21,24 52:9,14,19,24 14:14,23 15:9 hear 3:3 57:21 Houston 10:12 increased 16:4 33:5 53:3 16:2,19 17:9,13 heard 10:18 45:23 46:3 33:7 36:19 44:3 interesting 50:3 17:16,21,25 18:9 heavy 17:17 39:21 Huffington 13:9 58:19 interests 3:13 19:17 18:18 19:1,23 69:24 huge 12:19 70:8 increases 24:15 interpretation 63:2 20:17,25 21:3,8 held 4:11 25:7 hundreds 35:17 31:24 interrupt 11:12 22:12,14,15,18 72:24 40:18 49:11 increasing 22:10 invading 26:23 23:10,15,16,17 Hellerstadt 3:5 husband 72:4 66:12 invalid 55:18 24:3,8,23 25:2,3,6 HELLERSTEDT husbands 71:20 indentured 62:12 invalidity 39:10 25:20 26:24 27:2 1:6 62:15 invest 61:1 27:16 28:11 30:5 I helpful 14:25 independent 23:21 investors 60:6 31:3,12,15 32:2 high 51:21 identical 23:4,8 60:9,13 67:14 involve 20:20 32:13,16,21,23 higher 44:9 55:23 identified 30:15 75:9 involved 41:9 42:16 33:3,9,20 34:10 63:3,5,5,21,23 imagine 42:14 independently 10:1 ipse 30:12 45:1,2 34:15 35:6,8 36:7 65:5 68:5 immediate 66:6 indicated 43:17 irrational 41:1 36:11,12,16,25 highest 51:25 immediately 14:11 individual 26:17 issue 24:10 45:8 37:2,8,9 38:5,20 hit 50:22 66:6 infer 11:9 52:22 69:4 76:1 39:4,23 40:15 holding 6:5 44:17 impact 14:22 34:25 inference 29:9 45:5 issues 4:5 41:5,10,16 42:1 51:15 72:15 impetus 43:14 74:17 42:10,13,21 43:11 holds 34:2 implementation information 12:23 J 44:1,7,10,12 45:7 Holes 65:12 22:5 informed 19:22 JA 28:6 30:4,14 45:11 46:1,16,21 home 20:21 21:4,13 implementing 8:2 informed­consent 37:2 39:5 41:2 46:24 47:2,9,14 41:18,18 42:25 8:13 19:16 53:17 54:10,20,23 47:24 48:1,3,13 honestly 48:25 importance 15:14 initial 11:3 55:3 59:2,19 48:16 50:3,4,20 Honor 3:24 4:23 important 13:25 initially 11:1 65:25 73:17,19 50:21 51:5,17,19 6:10,17 7:1,13 9:3 54:9 77:1 injury 55:7 74:3,10 52:7,10,11 53:2 9:17 11:1,13 12:6 impose 8:12 17:17 innocuous 27:6 JOHN 1:6 53:18,22,25 54:3 12:17 13:7,14,24 17:19 20:8,9,10 inquiries 35:25 join 71:5 54:5,12,21,25 14:13 15:4 17:3 20:13 21:24 35:9 inquiry 38:1 joined 62:1 55:6,14,20 56:6,9 17:24 18:21 19:14 40:4,18 75:23 Insofar 44:6 Joint 73:24 56:12 57:9,20,21 20:3 21:7 23:2,14 imposed 22:1 40:1 inspected 65:11 JR 1:19 2:6 24:5 57:23 58:9,10 23:24 76:17 imposes 18:21,23 66:21 judge 31:9 40:9 59:3 60:1,11,19 Honor's 25:10 34:5,13 inspections 64:7 48:3 60:23 61:4,17,19 26:11 impossible 28:15 65:21 66:2 judges 31:15 76:12 62:4,8,14,17,22 horrible 53:7 55:1 improve 36:18 instance 6:18 48:10 judgment 4:1 5:6 62:23 63:12,18,25 hospital 20:20 53:12 48:24 57:13 65:4 42:20 64:4,22,23 65:7,8 23:20,20 27:13 improvement 65:9,9 68:25 judicata 6:7 36:17 65:17,18,19,19,20 42:3,6,25 47:7,18 40:18 69:23 43:10 71:7 66:1,8,14,18 47:19 49:23 51:6 include 37:5,6 instances 6:3 judicial 48:19 67:10,11,16,17,23 51:10 54:16 includes 36:23 37:8 instruction 26:15 Justice 1:20 3:3,9 68:1,2,2,5 69:7,13 hospitalized 53:16 including 16:12 instruments 65:14 3:17 4:2,17 5:9,19 69:15 70:1,3,4,8 Alderson Reporting Company Official Page 84 70:10,19,22 71:9 44:12 46:1 52:7 23:12 24:1,10,12 33:14,14 49:2 lots 22:21 72:3,6,17 73:6,7,8 52:10,11 70:3 24:13,24 25:23 50:19 56:15 Louisiana 16:22 74:8,11,24 75:11 kept 36:5 26:3,4 28:12 29:5 level 27:10 37:24 32:5 76:11 77:17,19 Kermit 64:1 29:10,23 34:4 68:13 lower 39:19 55:4 justification 24:18 key 5:9 8:9 29:21 35:25 36:2 40:25 liberty 3:14 20:6 lowest­risk 53:7 34:6 35:12 76:23 31:19 43:14 44:3 46:6 licensed 8:22 9:24 Lubbock 58:11,25 justified 17:19 Killeen 59:1 68:18 47:5,5,9,10,15 62:9 73:20 Lynn 61:8 62:11 21:23 76:7 68:22 73:16 53:4,5,22 58:19 licenses 67:3 M kind 26:19 35:10 59:7 60:2,3 61:20 licensing 25:23 K 40:3 50:13,13 63:1,9 66:2,24,24 29:15 magnitude 18:23 K 45:17 51:11,12 58:7 70:11,22 72:5,7 life 19:19 56:14 main 23:11 Kagan 14:2,7,14 63:7 64:9 66:9 72:10 73:3 77:7 lift 62:4 mainstream 21:21 28:11 38:20 39:4 kinds 15:14 48:17 laws 17:17 47:4 lifted 14:10 major 15:10 32:1 50:4,21 51:5 51:14 49:25 63:16 64:20 light 19:25 66:13 majority 43:3 58:10 62:23 63:12 knew 16:9 29:16,16 67:2 76:24 77:1 lines 10:8 making 6:9 8:9 63:18,25 64:4,23 know 8:7 15:11 lawsuit 41:15,23,24 linkage 54:6 16:11 19:21 65:8 66:8 21:17 23:21,21 42:2,3 43:24 liposuction 51:12 manner 34:18 keep 14:1 27:16 29:4 31:11 45:16,18 46:5,5 liposuctions 63:22 March 1:11 Keller 1:22 2:10 32:10,17 35:4,8 53:14 58:13 62:1 litigated 43:10 marginal 70:23 36:8,9,11,15 37:2 44:10 47:14 50:8 62:3 70:20 71:5,6 litigating 16:22 market 16:15 37:22 38:7,20 50:11 51:12,23 Layne­Farrar litigation 3:20 Massachusetts 39:4 40:12,23 53:9 54:16 60:23 28:19 45:18 50:9 51:7 41:10,20 42:8,12 61:11 62:5 63:13 lead 57:4 little 5:19 material 3:25 4:24 42:17 43:2,13,20 63:18,24 64:16 leading 21:21 76:9 live 38:18,22 71:24 5:6 44:6,9,12 45:10 71:12,15 lease 60:16 72:1 math 55:1 45:15 46:2,19,23 knowing 11:19 leased 60:22 lived 38:25 39:1 matter 1:13 77:22 47:8,13,24 48:2 known 8:16 leave 49:5 62:18 lives 35:17 40:21 maximum 53:1 48:13 49:19 50:17 knows 26:7 left 10:11 64:11 42:5 Mazurek 50:19 50:24 51:15 52:4 74:25 living 39:3 43:3 51:16 56:3 52:10,15 53:14,21 L legal 36:20 loathe 31:13 McAllen 37:5 39:6 54:5,18,23 55:3 lack 44:21 65:13 legislation 7:11 local 42:7 57:11 58:9 61:4 55:13,16 56:2,9 lacking 18:1 34:24 located 37:1 73:16 57:9,20,20 58:9 land 60:6 legislators 64:18 locus 29:21 McCallen 46:12 59:13 60:10,15,21 language 20:12 legislators' 65:16 logical 19:2 68:18,20 69:8 61:2,17,25 62:7 large 39:9 69:25 legislature 15:16 long 51:22 58:6 mean 4:4,19 13:4 62:14,19 63:10,15 70:7 73:1 17:23 44:14 50:1 longer 69:18 19:2 27:4 31:15 63:25 64:17 65:3 Laughter 31:17 50:4,5 53:12 look 9:10 19:8 42:22 49:14 50:5 65:15,23 66:11,16 48:12 54:2 56:11 55:18,23 60:15 30:14 32:5 34:18 52:11 55:6 56:7 67:6,21 68:7 63:14 68:4 67:17 68:11,13 34:24 35:2,23,24 57:2 58:3,6 64:5,7 69:13,16 70:6,9 law 5:15,22 6:5 legislature's 57:7 35:24 52:13 54:6 68:6 70:16,21 71:1 8:12 12:11,24 legislatures 50:2 71:21,22 meaning 39:24 72:2,5,7,24 73:7 13:12 14:15,16,17 68:7 looked 19:17 30:20 40:1 66:19 Kennedy 4:2 5:9 15:15 16:4,6,13 legitimate 3:12 30:22 35:3 45:2 meaningful 24:19 8:4 14:23 15:9 16:18 17:22 18:1 20:4 50:1 52:24 50:7 66:4 means 34:11 71:16 30:5 31:3,12,15 18:7,12,21,24 53:3 looking 39:7 49:25 mechanism 66:9 43:11 44:1,7,10 19:4,7,9 20:22 let's 3:19,20,21 71:23 medical 20:19 Alderson Reporting Company Official Page 85 21:11,18,20,21,25 miscarriage 23:5 nevertheless 16:11 38:11 opponents 64:21 22:23 23:18 24:18 miscarries 23:6 new 1:17 4:4,8,21 obtained 46:12 opportunity 6:13 24:19 35:13,19 miscommunication 5:9 15:25 16:7 obviously 37:25 15:21 45:9 41:6 42:11,23 43:7 26:4 28:23 36:20 occur 42:22 opposed 21:13 44:4 43:15,17 44:4 misquoting 62:25 37:6,10,10,13,16 occurred 16:16 59:14 67:19 50:12,25 51:2,3,6 moment 20:18 37:16,25 47:15 30:23 opposite 34:20 55:22 63:3,5,5,7,8 money 29:18 56:23 62:15 odd 37:9 oral 1:13 2:2,5,9 64:18 65:1 70:23 60:6 newly 4:24,25 offer 6:19 74:15 3:7 24:5 36:9 75:20,23 76:2,8,9 months 60:15 news 13:8 offered 74:21 49:24 76:23 69:19 nine 46:4 59:22 offering 74:12 order 18:21 19:13 medically 17:18 morning 3:4 non­abortion 22:20 office 49:7 77:10 ought 26:22 35:3 20:13 21:23 44:5 mouth 10:7 non­ASC 67:20 offices 22:20 67:3 outfit 64:9 76:7 move 11:22 non­Petitioner okay 13:8 21:9 outfits 64:13 medication 21:18 multimillion­doll... 44:25 33:20 46:25 47:9 outpatient 24:1 23:25 21:19 northern 32:1 47:14 49:12 51:10 77:2,4,15 meet 15:7 28:9,16 multiply 33:14,15 noted 26:19 28:11 63:23 outside 54:16 28:18,20 30:9 43:24 44:22 52:15 old 26:2,2 overall 31:24 N 46:14 68:9 72:13 once 11:20 19:6 overnight 56:22 meets 59:5,11 N 2:1,1 3:1 notification 71:20 31:21 58:3,3 69:8 mentioned 58:10 N.Y 1:17 72:4 69:9 P 65:8 named 61:18,22 number 5:23 7:2 one­7:4 P 3:1 merely 5:2 77:12 names 47:22 10:15,23 12:20 one­two 10:3 page 2:2 10:9,21 merits 17:12 nation 48:5,10 13:1 15:6 16:3,24 onerous 21:24 33:11 47:21 73:23 message 72:4 National 48:13 17:4 22:7 30:23 77:16 74:11 metroplex 38:10 nationwide 43:18 31:24 33:4,12 ones 13:6 16:1 pages 30:4,14 metropolitan 36:21 68:10 44:4 45:2,20 71:13,13 Parenthood 13:5,9 73:2 nature 27:14 54:17 56:18 60:9 open 24:15 29:15 36:19 45:23 46:3 Mexico 37:7,10,10 near 41:17,18 42:7 60:14 74:1,13,22 29:17 30:1,2 46:4 53:15 57:18 37:13,16,16,16,25 72:1 numbers 10:22 36:22 38:18 60:24 58:18,18 71:1,5 MGH 50:22 51:9 nearby 47:7 32:7 opened 16:8 36:20 74:25 75:1,7,8 mile 38:8 nearest 37:1 42:25 nurse 26:3,4,5,7 59:23 60:2,3,5 part 7:12,20 17:8 miles 21:5 37:1,4 nearly 9:20 10:4 opening 15:25 41:22 44:16,18 38:18,22,24,25 necessarily 26:3 O 72:15 62:2 71:2,5 39:1,3,17 41:19 40:20 O 2:1 3:1 operate 11:24 partial 68:9 42:4,4,4 43:3 47:7 necessary 15:3 40:2 objections 8:9 24:21 66:7 75:10 partially 9:19 56:21 necessitate 22:24 objective 34:18 77:11 particular 5:21 million 28:21,23 need 34:14 37:15 obligation 61:23 operated 28:14 12:21 13:19 27:9 29:1 38:23 39:2 39:23,25 40:7 obstacle 19:3,9,11 75:7 38:8,13 40:4 40:22 42:3 52:21 60:9 19:24 25:12 27:25 operates 46:3 44:16 mind 14:1 60:13 29:22 34:13,17,20 operating 11:20 particularly 23:4 minimum 39:9 needed 11:22 33:16 35:10 38:1 39:18 25:11 28:25 73:21 31:25 32:4 66:13 50:25 73:1 41:13 53:12 40:24 49:20 52:17 operation 28:12 parts 25:10,13 minuscule 49:16 needs 56:1 57:14 69:21 operations 28:11 31:25 48:21 minute 50:20 negate 55:7 obstacles 3:16 opine 31:13 Paso 37:6,20 38:9 minutes 17:14 35:4 never 16:15 49:19 24:16 34:5 opinion 10:8 26:9 38:10,15 39:7 36:14 73:9 64:6 obtain 4:14 5:17 48:5 74:12,15 57:16 68:19,21 Alderson Reporting Company Official Page 86 69:18 73:17 75:5 Petitioner 54:11,19 73:13 prevailing 76:2,8 prompted 64:2 pass 35:25 54:24 policy 37:22 prevent 43:6 64:10 promulgate 8:6 passed 47:16 59:23 Petitioner's 53:14 populous 36:24 67:8 promulgated 8:8 64:1 Petitioners 1:4,18 46:8 preventing 66:9 prong 44:21 patient 43:7 47:11 1:21 2:4,8,14 3:8 position 6:4 7:20 prevents 64:13 proof 52:21 52:24 77:15 15:20 24:7 39:21 7:23 43:13 44:11 previously 48:14 proper 14:25 72:13 patients 53:1 42:19 44:15 46:20 Posner 48:3 prior 3:20 7:1,1 proportion 22:7 pay 21:5 29:14 56:4 57:12 69:24 possessed 70:16 11:3 22:2 25:22 protect 37:14 Pennsylvania 72:14 73:11 possible 32:6 73:4 42:2 47:9 53:4,4 protecting 53:3 39:13 53:8 66:3 Petitioners' 28:2 Post 13:10 66:2 74:1 protective 53:5 66:20 41:23 45:16 57:19 post­16­week 16:14 privilege 9:10 protocol 41:21 people 21:11 48:17 58:12 posture 69:24 privileges 3:22 4:14 provide 5:4,7 11:13 55:9,11 61:12 physically 28:15 potential 19:19 4:15 5:18 10:14 15:20 60:20 70:25 physician's 77:10 powers 31:5 10:14 12:7 37:17 provided 8:14 52:4 percent 16:4 30:5,6 physicians 77:11 practice 24:21 77:5 37:24 46:7 47:6 60:15 61:8 62:13 33:5 37:3 38:17 piece 7:19 pre 67:2 47:21 59:2 61:7 77:1 39:13 43:25 55:4 pills 20:21,21 21:12 pre­enforcement 61:15,24 62:9 provider 38:23 68:5 21:13 23:19,22 5:14 75:2 77:5,12 70:12,13 75:10 percentage 33:4 41:6,8 42:15 precedent 50:17 probably 42:20 providers 8:20 77:4 54:25 55:10 pin 11:14 precipitous 74:22 problem 26:11,18 Providers' 53:22 percentages 45:3 place 16:1 precise 71:19 26:18 29:22 31:8 provides 26:15 perfect 14:14 plain 72:21 precisely 51:2 31:19 48:9 53:11 36:19 37:3 perfectly 37:18 plaintiff 61:18,22 68:14 72:12 57:24 58:6 64:8 providing 31:21 perform 23:7 42:19 75:9 precluded 3:19,23 66:3,15,19 67:13 58:19 45:24 46:9 62:19 plaintiffs 4:7 5:2 3:24 68:12,13 69:7 provision 9:1,2,7,9 performed 16:24 6:18 7:14,15 8:16 preclusion 7:22 71:15,23,25 9:13 24:24 25:1,6 17:5 22:8,20 23:4 8:22 16:23 73:15 preemptively 68:17 problems 27:1 30:9 26:16 72:8 24:2 30:2 32:8 plaintiffs' 11:15,17 68:19 67:12 provisions 9:15 33:13 45:3,4,21 73:23 preexisting 25:19 procedure 20:7,20 public 68:8 49:23 67:20 76:16 planned 13:4,9 pregnancies 3:15 23:20 38:3 41:9 punch 10:3 77:8,10 36:19 45:23 46:3 pregnancy 22:4 47:3 48:9 50:14 purpose 19:4,9,21 performing 16:3 46:3,4 53:15 preliminary 3:18 51:12 52:6 53:19 50:1 52:16,22,23 58:24 59:6,12,22 57:18 58:18,18 prelude 23:20 54:4 68:9 70:24 55:17,18 56:8,8 61:9 67:2 60:2,4,7 71:1,4 premise 25:10 procedures 16:16 56:13,15 57:8 period 7:6 14:8 74:25 75:1,7,8 43:12 72:20 22:2,24 23:3 24:1 purpose­based 22:6 28:12 30:8 planning 13:12 prescribes 20:20 33:16 44:4,5 52:20 30:20,22,24 32:23 play 20:19 presence 26:14 49:16 53:7,10 put 12:21 13:3,17 39:16,16 47:15 please 3:10 24:9 preserve 18:3 63:4,21 65:1 14:16 16:21,23 69:18 36:16 preserved 18:5 67:20 75:20 76:1 32:4,6 45:8 46:16 permissible 43:21 plus 46:11 presumably 9:8 76:15 77:8,14 46:18,19,21 51:18 permission 67:3 point 5:23 13:18 41:1 Program 13:11 71:3 permit 22:12 23:10 26:11 27:24 presume 67:4 prohibited 59:6,12 puts 24:14 permitted 8:18,19 33:22 37:10 40:22 pretty 25:25 55:1,2 prohibitive 15:25 Q 44:14 62:10 54:6 61:2 65:6 prevail 68:22 28:22,24 personal 3:14 pointed 66:8 prevailed 57:12 promote 63:17 qualified 76:12 personnel 63:4 points 28:1 57:11 68:20 promoting 52:24 question 3:18 10:7 Alderson Reporting Company Official Page 87 10:17 16:20 17:11 reason 12:5 17:19 regulated 75:20 54:14 responding 53:12 19:2 22:13 25:10 20:9 26:12 54:8 regulating 3:13 reporting 54:7,8,15 response 34:10 26:11 31:13 33:24 75:22 20:5 72:7 54:17 74:5 34:11 40:16 47:1 reasonable 26:1 regulation 10:10 reports 65:21 66:22 responses 41:10 52:18 55:8 56:7,8 29:9 61:16 71:11 25:11,13 50:6 reproductive 37:3 responsible 9:20 59:8 62:24 63:19 reasonably 19:20 64:12 65:2 38:18 72:14 10:3 71:10 26:13 regulations 3:15 require 49:22 rest 10:18 37:21 questions 66:17 reasons 6:14 7:14 8:2,6,8,14,15 25:1 55:11 61:22 restarted 58:8 quibble 11:6 11:9,15 12:24 25:3,4,14,16,19 required 23:19,22 restate 25:13 quick 16:19 21:23 23:11 36:1 27:5 64:3,5 66:12 24:1 25:25 76:15 rested 10:24 quite 6:2 13:17 48:17 72:10 75:23 76:1 77:11,13 restriction 20:9,10 15:10 32:7,7 reauthorize 25:14 77:14,16 requirement 4:16 20:11,12,15 48:25 49:5 60:5 rebut 6:20 45:12 regulatory 26:25 5:13 7:25 8:2,20 result 4:15 11:21 71:19 76:18 rebuttal 2:12 11:14 66:20,25 9:19,22,25 10:1 12:10 13:10 22:3 quoting 71:11 12:1 16:21 17:3 reinstate 69:10 11:4,5 14:5,8,22 28:8 60:2 75:6 17:15 73:10 related 7:11 18:16 15:24 22:6 28:6,8 resulted 5:12 30:21 R recognized 21:11 22:19 29:4,7,8 30:10,21 retain 33:25 34:3 R 3:1 recommended relation 19:15 31:7 35:9,11,16 retirement 61:8 raised 41:23 44:19 48:14 relevant 3:25 39:19 37:11,12 41:4 retrofitting 28:20 65:16 67:14 68:25 record 4:10,12 5:20 72:11 43:8 49:22 57:17 review 52:20 raising 18:11 7:10 11:8,12 12:1 reliability 76:19 58:16,22,25 59:14 right 14:7,11 17:20 random 66:1,2 13:15,18,22 15:5 reliable 76:22 59:15,17,24 62:5 18:22 19:25 20:1 range 71:11 15:22,22 17:4,8 relief 37:5 44:17 73:20 74:7,19 20:6 21:3,8 33:25 rate 16:15 41:12 21:16 22:4,22 46:12 68:23 69:2 75:14,14,17,17 34:3 36:3 37:13 43:25 23:3 28:5,13,19 relieve 61:22 requirements 3:11 37:18,19,20 42:12 rates 41:11 44:13 29:19 30:3 38:8 rely 30:19 7:17 9:17 10:3 47:7 50:16,23 55:22 38:21 44:23 45:16 remain 24:15 29:25 11:19,21 19:16,18 54:23 56:15 62:13 rational 17:22 18:2 47:16,25 51:4 30:1 19:20 21:22 22:10 62:22 63:9 66:2 18:4,7,19 19:7 54:6,9 57:10 61:5 remained 7:2 74:2 23:9,25 25:24 70:16 72:18,24 40:13 52:19 63:16 68:17,18 remaining 9:24 26:22 28:9,16,21 ripe 7:25 rationally 18:16 71:8 73:13,24 11:22 14:24 15:6 35:11 51:14 59:6 rise 37:23 68:12 rats 65:12 76:6 15:19 30:24 33:13 59:11 75:7 76:7 risk 22:19 49:9,14 react 50:2 68:7 reduce 10:15 56:17 33:22 44:21 46:14 res 6:6 36:17 43:10 49:15 53:9 55:25 reacted 68:11 reduced 60:14 73:9 71:7 57:5 63:21 65:5 read 27:4,5 49:12 reduces 39:16 remains 27:24 resolved 4:20 67:19 76:13 49:12 55:21 57:2 reexamine 64:2 remand 15:1,19 resources 11:22 riskier 53:19 54:3 57:2 references 12:1 27:20 60:24 risks 22:10 24:22 reading 43:17 referred 74:19 remedy 27:21 57:7 respect 5:21 20:1 49:5,6,6 47:12 regard 32:15 34:21 61:7,13,16 69:11 25:16 28:4,13 risky 23:1 63:8 real 28:17 33:25 76:13 rendering 4:10 29:2,3,3,9,10,11 ROBERTS 3:3 34:3 57:24 66:15 regardless 53:23 reopen 14:17 58:11 29:12,19,20,22 4:17 6:23 7:7,9 66:19 58:14 reopened 14:11 30:12 31:19 34:24 8:25 9:5 11:11 really 12:20 29:20 region 75:5 58:10 59:16,16 75:15,19 76:14 17:13,21,25 18:9 32:10 36:3 40:10 registered 26:4,5,7 69:8,19 Respondents 1:23 19:1,23 22:14 44:3 53:25 64:8 regular 8:7 23:1 report 13:9 54:19 2:11 9:23 11:6 23:16 24:3 34:15 64:24 65:11 regulate 38:1 43:21 reported 13:10 36:10 73:19 74:21 35:6 36:7,12 45:7 Alderson Reporting Company Official Page 88 45:11 65:19 69:15 seen 49:11 Simopoulos 49:21 spot 42:22 58:2 stay 29:15,17 31:6 73:6,8 74:8,11 sees 68:11 49:24 50:18 51:16 61:6 45:17 56:22 77:17,19 segment 72:22 56:3 63:11 65:4 spots 66:6 stayed 14:10 Roe 52:25 self­created 67:13 75:25 spousal­notificati... STEPHANIE 1:17 rogue 64:9,13 65:8 self­evident 70:2,11 single 25:6 48:10 72:8 2:3,13 3:7 73:10 role 40:9 70:14 48:24 69:17 stable 7:3 sterilize 65:13 roughly 12:12 self­induced 18:15 sites 11:14 stage 54:4 stipulated 9:23 36:14 49:6 57:4,10 situation 62:15 stand 20:11 26:22 14:19,20 59:10 rule 8:7 send 37:15 67:8,15 34:4 73:19 rules 66:25 sense 30:16,20 situations 43:4 standard 36:19 stipulation 14:21 run 49:16 32:20,21 35:20 six 4:4 36:23 58:23 37:23 39:9 51:21 28:6 59:4,4,8 separate 3:21 21:1 six­month 22:6 51:24 58:20 65:2 stories 65:15,18 S 35:25 size 70:7 66:12 67:6 strength 34:21,22 S 2:1 3:1 separately 9:1,6,12 slave 62:12 standards 50:11,14 stress 24:14 safe 53:9 separation 9:14 slightest 40:17,21 50:22 63:3,5,6,23 stretch 46:13 safer 56:14 67:7 serve 19:21 small 55:2 76:3,8 stretcher 27:12 68:14 served 19:18 solely 9:13 start 4:22 58:5 struck 3:12 34:2 safest 77:14 services 1:8 13:12 Solicitor 1:19,22 started 36:13 56:5 safety 27:8 36:18 set 25:16 37:22 somebody 27:12 starting 72:20 studied 30:23 32:23 53:1 63:17 63:2,23 Sonia 70:3 state 1:7 5:25 6:12 subject 23:9 65:2 San 10:12 15:11 setting 66:23 77:15 sorry 7:9 11:11 6:19 7:2 11:24 submitted 77:20,22 57:16 seven 28:14 58:15 20:25 23:17 65:17 14:19,20,23 19:17 subsequent 4:1 5:5 Santa 37:6 58:17 sort 64:11 20:1,7,8 24:14,17 substance 34:1,4 saving 35:17 severability 25:17 Sotomayor 20:17 26:9 28:13 31:1 substantial 3:16 saw 17:23 26:14,15 20:25 21:3,8 31:22,25 32:24 13:1 16:12 19:3,5 saying 36:3 63:23 severed 25:17 22:12,15,18 23:10 34:21,22 35:15 19:11,24 25:12 70:20 26:17 27:17 23:15,17 37:8 42:9 44:8 51:20 27:24 29:22 31:1 says 8:7 33:12 short 7:5 30:7 39:23 40:15 50:3 65:25 66:4 67:7 31:5 34:16 38:1 37:14 45:25 47:5 33:21 50:20 51:17 54:12 74:18 39:18 40:24 49:20 48:4 50:5 57:22 show 10:22 12:22 54:21,25 55:6,14 State's 18:13,16 52:17 57:14 69:21 66:7 70:11 75:1 15:15 23:11 28:5 55:20 60:1,11,19 19:19 20:4 26:25 succeed 39:21 scandal 64:1 52:7 55:25 69:24 60:23 61:4,17,19 43:13,16 52:9,14 succeeds 69:12 SCOTT 1:22 2:10 75:13 62:4,8,14,17,22 52:18 successful 57:25 36:9 showed 38:8 65:17 66:14,18 statements 64:19 suddenly 56:19 scrape 56:23 showing 6:2 33:6 67:10,17,23 68:2 States 1:1,14,21 2:7 sue 6:7 scrutiny 24:19 45:12 74:5 68:5 70:1,4,8,10 8:5 21:10 24:6 suffice 46:14 second 5:8 7:19 shown 21:11 39:22 70:19,22 74:24 53:1 64:2 68:11 sufficient 4:12 5:1 22:8,15 30:19 57:14 69:21 sought 20:4 69:3 States' 3:12 5:7,16 6:20 15:4 49:2,2 shows 15:22 16:14 72:19 statewide 15:8 sufficiently 53:5 second­trimester 22:23 23:3 space 60:17,22 statistic 33:6 54:7 suggest 67:4 76:1 shut 14:9 specific 5:20 11:14 55:3 suggesting 35:3,22 see 17:2 30:15 31:7 side 10:19 45:13 specify 75:16,16,17 statistically 45:12 suit 5:2,5,6,14 8:23 32:5 56:6 67:11 significant 31:23 75:18 statistics 17:7,7 supplement 15:21 seek 8:23 24:16 43:2 45:12 71:8 speculative 4:12 32:18 38:21 39:5 supplemental 4:3,6 68:22 significantly 43:18 speed 66:7 statute 8:10,13,14 supplies 74:16 seeking 51:23 similar 65:15 spontaneous 23:5 statutory 8:2 supply 13:21 Alderson Reporting Company Official Page 89 support 6:21 15:5 targeted 23:12 24:3 36:6,7,11,15 76:3 tried 45:20 supporting 1:21 targeting 55:24 46:24 56:9 73:6,7 times 30:18 49:9,11 trimester 22:8 2:8 24:7 76:22 tell 37:25 47:22 73:12 77:17,18 51:13 67:25 true 24:23 25:1 supports 15:23 62:25 74:24 theme 44:2 timing 7:6,12 45:14 50:12 64:22 suppose 5:25 15:12 telling 40:9 theory 36:3 tiny 57:5 truly 76:25 25:15 36:12 57:24 tells 30:3 they'd 30:6 today 36:22 38:19 try 44:24 55:7 Supreme 1:1,14 4:5 ten 15:7 50:8 61:3 thing 25:7 31:20 59:22 69:2 56:22 sure 14:3 17:14 tenth 46:11 35:8 48:6 66:9 told 24:20 35:13 trying 26:20 44:20 22:14 35:6 48:17 Teresa 37:6 things 6:25 25:21 58:13 56:4 51:5,8 69:15 70:6 test 18:18 34:23 27:13,16 37:15 tomorrow 58:5 turn 49:2 69:4 surgery 16:7 42:16 35:20 40:14,24 54:16 69:11 two 9:14 10:7,11,11 42:17 49:7,23 49:19 52:8,16 think 8:25 10:5,7 top 67:22 10:12 20:18,20 65:3 77:2 testified 7:15 11:17 10:17,19 13:25 topics 68:8 21:1,5 22:23 surgical 7:19 16:3 21:11 73:15 14:23 15:3,4 total 12:3,10 23:11 28:1 35:4 21:19 22:2 37:11 testimony 7:13 17:21 19:10 24:25 Toti 1:17 2:3,13 3:6 35:25 39:17 41:6 41:7,8,13 42:4,7,9 11:15 21:16 28:18 25:11 26:6,10,11 3:7,9,17,24 4:7,23 41:8,10,20 47:4 42:15,19 43:1,15 30:3,14 31:23 26:12,19 27:19,23 5:11 6:10,12,17 48:21 52:12 55:5 43:21 44:4 49:4,8 32:15 39:6 43:25 27:23 28:5 29:1 6:25 7:8,12,24 57:11 59:18,19 49:10,15,17 58:1 51:4 57:11 61:5 29:11,18,21,21 8:11 9:3,16 11:1 75:4 77:4,8 73:17 74:4,15 31:3,14,16,18 11:13 12:2,6,12 two­and­a­half surprised 27:5,6 76:6,19 32:12,14 33:24 12:16 13:7,14,24 31:7 sustained 20:15 Tex 1:23 34:20 35:1,7,18 14:2,6,12,18 15:3 two­clinic 7:4 swath 69:1 Texas 1:7,22 3:11 35:19,23 36:1,14 15:18 16:6 17:2 two­day 21:9 swift 69:9 9:21 13:5,11 48:25 50:7,14 17:16,24 18:3,12 two­part 22:13 system 8:5 16:16 17:6 20:22 51:17 55:20 60:4 18:20 19:13 20:3 two­week 14:8 24:10 33:8 36:18 63:19 64:17 76:11 20:22 21:2,7,15 types 20:18 T 36:21,21,24 37:3 thought 17:25 22:17 23:2,13,24 typically 23:7 T 2:1,1 37:14,14,21,22,25 19:23 31:13,14 73:8,10,12 74:10 Table 33:11,12 38:17 39:16 42:18 33:9 34:16,17 74:14 75:4,15 U tailored 27:21 43:19 46:8,11 44:1 76:17 77:18 ultimate 38:3 52:5 take 3:19,21 6:4 8:6 48:11 52:25 53:8 thousands 40:18 transcript 49:25 72:25 10:6 12:25 14:17 54:19 55:18 57:15 three 16:7 31:7 transfer 47:11 ultimately 33:24 16:1,20 17:14 58:12 59:10,22 39:15 40:12 55:5 77:13 unable 4:13 5:17 20:21,22 21:1,4 60:17,18 62:2 59:23 68:19 travel 21:5,10 unanticipated 8:9 35:4 41:6,8 42:15 63:2,13,16 64:2,8 three­quarters 39:12,14 40:2 unconstitutional 44:24 55:8,11 64:9,14,16,18 38:23 39:2 41:21 56:21 57:14 6:6 25:8 52:2,22 56:15 70:20 65:16 66:1,5,8,11 threshold 17:10 71:16 52:23 taken 16:7 27:13 67:13,15 68:15 thrust 43:14 traveling 39:17 underlying 43:12 33:17 64:9 69:1 70:5 71:2,17 tie 55:14 treat 75:22 44:2,2 takes 60:5 71:18 72:14 73:1 till 66:7 treated 50:18 75:21 undermine 3:11 talk 14:24 73:5,15 74:2 75:3 time 5:2 7:6 8:1 treatment 21:6 undermines 18:8 talking 12:19 13:6 75:6,8,22 76:25 16:21 17:3,10,11 treatments 23:22 18:13 13:13 40:15,16 77:7 17:15 21:10 30:8 55:22 underreported 42:2,2 54:14 Texas's 16:12 64:5 30:20,22,24 32:23 trial 4:10,11 16:8,9 54:10,13 65:25 71:20 72:9 76:22 33:21 40:2 47:15 16:10 60:18 76:20 66:17 target 77:14 thank 17:16 23:16 60:18 69:13,18 76:21 understand 12:20 Alderson Reporting Company Official Page 90 13:2,16 14:3 violation 66:6 75:3,5 51:25 68:12 175 45:25 30:11 34:19 53:6 violations 65:11 What'd 11:25 wrong 30:13 183 28:7 73:19 56:23 65:20 Virginia 49:22 whichever 35:23 184 73:19 X understanding virtually 23:3,8 wide 27:11 69:1 35:20,21 63:9 win 5:25 x 1:2,9 2 understood 13:23 W wise 44:5 2 1:11 33:12,14 Y undue 17:19 18:6 Wade 52:25 withstand 24:18 59:23 73:23 18:19,22 19:3,6 wait 8:7 21:9 50:20 woman 23:5 42:5 yeah 7:9 12:9 32:16 2,000 33:14 19:11,14,23,25 waiting 39:16,16 42:14,25 48:8,20 44:6 61:2 65:3 2.3 28:21 20:10 34:8,9,11 waivers 8:17,18,23 49:14 69:12 72:18 67:10 20 7:5 10:15,16 35:20,21 39:11 wake 11:2 64:1 72:22 year 7:3 29:1,15,24 11:2 12:12,14 40:5 48:20 51:22 walk 20:17 woman's 1:3 3:4 30:2 32:9 45:4 29:5 30:5,6,22 52:13 69:20 70:13 want 10:6 16:20 19:25 20:5 28:14 years 7:1 8:6 31:7 200 21:5 38:24 39:1 70:14,24 26:8,10 29:17 54:20,24 58:6 66:5,22 67:18 39:3 undue­burden 44:10 47:14 56:14 65:10,24 73:25 2003 16:13 39:25 52:8,16 63:12,24 64:16 women 20:21 22:3 York 1:17 2011 13:11 United 1:1,14,20 67:4 22:11 24:16,22 2012 38:25 Z 2:7 24:6 wants 48:21 51:21 33:16 36:25 37:3 2016 1:11 zero 49:14 unnecessary 3:15 62:17 37:15,20,21 38:10 210 53:15 55:1 20:13 75:23 Washington 1:10 38:15,17,22 39:7 0 22 58:23 unreasonable 1:20 39:14 40:19,22 225 30:4 73:25 20:12 26:6 wasn't 4:12 17:1 43:3 47:17,21 229 74:3,4,10 unusual 55:10,25 61:25 48:14 49:16 51:23 1 232 74:11 unwarranted 20:8 way 26:9 27:22 52:1,4 53:15 55:5 1 38:8 55:4 24 2:8 33:15 34:11,12 35:3,23,24 37:14 56:15,21,24,25 1.6 28:21 24­hour 39:15 upheld 36:2 49:21 44:14 57:5 62:12 70:15 10,000 39:1,2 56:20 242 37:2 39:5 upholding 19:16 we'll 3:3 17:14 70:17,20,25 71:11 10:03 1:15 3:2 25 37:3 upset 56:4 36:13 71:16,16,21,22,23 100 37:1,4 39:17 256 41:2 use 15:11 48:15 we're 12:19 13:13 71:24,25 72:7,13 100,000 38:25 258 41:2 18:6 31:6 35:3,22 72:23,25 11 11:4 12:6 14:3 259 30:4 V 39:1 50:9 61:13 women's 3:13 29:4,10 74:6,17 266 53:17 55:4 v 1:5 3:4 52:25 69:23 72:9 13:11 22:9 41:17 11:28 77:21 28 49:8 68:1,2,5 vacate 45:17 we've 50:7 50:9 53:5,13 1111 59:19 73:23 valid 66:13,14 weaker 34:7 75:24 12 12:16 13:21 2808 73:25 validate 49:4 Wednesday 1:11 wondering 64:12 14:16 value 39:25 week 45:25 word 26:16 121 64:18 65:16 variance 7:4 weeks 22:2 words 10:6 60:11 13 28:6 60:15 3 2:4 33:15 variety 21:23 weighed 52:8 work 27:2,3 35:10 131 59:19 3,000 32:8 Verrilli 1:19 2:6 went 16:4 19:24 61:1,14 62:10 14,000 30:2 3.5 28:23 24:4,5,8,25 25:5,9 33:5 45:19 58:17 63:7,8 1430 74:3 30 10:4 41:19 42:4 26:8,25 27:15,19 58:23 59:18 60:3 working 47:10,18 1436 59:19 42:4,4 47:7 51:13 30:6 31:11,18 weren't 7:25 28:7 works 35:21 15 66:22 67:25 33 58:17,23 32:12,14,19,22 29:16 worried 56:13 15­274 1:4 3:4 339 73:17 33:19,21 35:1,7 West 57:15 58:12 Worth 10:11 59:18 150 38:18,22,25 36 2:11 versa 9:11 69:1 71:2 73:5 wouldn't 4:25 5:4 56:21 vice 9:11 western 70:4 74:25 18:7,15 25:12 16 22:2 33:14 66:5 4.4 33:5 Alderson Reporting Company Official Page 91 10:15,23 39:13 401 59:2 58:17 430 60:17 433 60:17 439 74:4 50 16:4 43:3 5043 49:24 6 43:25 600,00 29:1 606 65:25 606­700 54:20,24 29:24 7 10:9 70,000 29:24 33:15 55:1 700 65:25 715 59:19 73:17 54:11 722 73:17 2:14 731 73:18 750,000 38:23 844 54:11 870 54:11 9 33:11 9,000 45:24,25 46:9 38:17 900,000 38:22 Alderson Reporting Company