[00:00:00] Speaker 03: Good morning. [00:00:00] Speaker 03: OK, good morning. [00:00:02] Speaker 03: If you want to make a rebuttal argument, you should stop before your full 20 minutes. [00:00:10] Speaker 03: Yes, sir. [00:00:10] Speaker 03: So if you would tell me what you intend to do. [00:00:16] Speaker 04: I'd like to reserve eight minutes for rebuttal. [00:00:19] Speaker 03: I'll try to remind you that you should watch the clock yourself. [00:00:27] Speaker 04: Good morning. [00:00:27] Speaker 04: I'm James McNaughton. [00:00:29] Speaker 04: I represent the appellant, the Satanic Temple, Inc., which I will refer to as TST. [00:00:36] Speaker 04: This case is about coerced motherhood and money. [00:00:42] Speaker 04: The state of Idaho can ban abortions from conception, subject to two very important caveats. [00:00:50] Speaker 04: Number one, if it results in a woman becoming a mother without her consent, [00:00:59] Speaker 04: It's a violation of the 13th Amendment. [00:01:02] Speaker 04: The state of Idaho has two options to avoid that. [00:01:04] Speaker 04: Number one, give her the opportunity to opt out. [00:01:09] Speaker 04: Or number two, make the delivery of an unwanted child a service to the state in the same way that military service is a service to the state. [00:01:20] Speaker 04: If your labor is taken by the state for the benefit of the public, it's not involuntary servitude. [00:01:29] Speaker 04: But the state of Idaho has not done that in this case. [00:01:33] Speaker 04: The second limitation is compensation. [00:01:38] Speaker 04: The uterus is property. [00:01:41] Speaker 04: You can lease it out. [00:01:43] Speaker 04: You can give it away. [00:01:46] Speaker 04: People are making literally tens of thousands of dollars by being gestational carriers. [00:01:52] Speaker 04: It has an economic utility in its own right. [00:01:57] Speaker 04: And if you take that economic utility away from the woman, the Fifth Amendment requires that you pay just compensation. [00:02:06] Speaker 04: Dobbs is only the starting point for addressing these issues. [00:02:12] Speaker 02: Before we jump to the takings and the 13th Amendment, I have some questions on standing, as you might appreciate. [00:02:23] Speaker 02: And as I understand, your client [00:02:27] Speaker 02: has a number of members in Idaho, and this teleclinic is operated out of New Mexico, is that right? [00:02:36] Speaker 02: That's correct. [00:02:36] Speaker 02: Okay. [00:02:37] Speaker 02: So the first question relates to associational standing. [00:02:44] Speaker 02: Although you allege that you have these members in Idaho, [00:02:50] Speaker 02: no member is named who would be a potential plaintiff here. [00:02:55] Speaker 02: And it would seem to me that, at least on that basis, you couldn't have associational standing. [00:03:03] Speaker 02: So maybe you can explain to me how you think, what have you alleged that give you the predicates of associational standing? [00:03:14] Speaker 04: There's a practical problem here that I'd like to point out to you first, okay, which is that there is a lot of fear out there. [00:03:22] Speaker 04: To find a woman who will stand up as a Jane Doe, I can tell you from personal experience, is extraordinarily difficult. [00:03:30] Speaker 04: Because I have to promise that woman that she will remain anonymous. [00:03:34] Speaker 02: We understand that. [00:03:35] Speaker 02: And we go back to Roe v. Wade for how that came about. [00:03:38] Speaker 04: I can't guarantee that. [00:03:40] Speaker 04: And so what I say to her is, here are your choices. [00:03:43] Speaker 04: If it comes to it, you might have to disclose your name. [00:03:47] Speaker 04: And you have the choice of saying, I'm not going to do that, in which event I get dismissed. [00:03:51] Speaker 04: And the efforts that I've put in up until now are for naught. [00:03:56] Speaker 04: But if you were willing to stand up and take that risk, I will represent you. [00:04:00] Speaker 04: I don't have any takers. [00:04:02] Speaker 04: And this is not the only instance where I've encountered that in this country. [00:04:05] Speaker 04: So here's the next step. [00:04:07] Speaker 04: I need an involuntarily pregnant woman. [00:04:11] Speaker 04: They exist. [00:04:13] Speaker 04: If you drew a line five miles out from this courthouse and did a radius, there are sight unseen dozens of involuntarily pregnant women. [00:04:22] Speaker 04: It's just a matter of biology and fact. [00:04:27] Speaker 04: Singleton case says you can create a class of women who either are or imminently will become, over the course of the year, pregnant. [00:04:38] Speaker 04: That's going to happen. [00:04:39] Speaker 04: That's a reality. [00:04:41] Speaker 04: All right. [00:04:41] Speaker 04: The question becomes, how many people do you need to have that class? [00:04:46] Speaker 04: 50? [00:04:47] Speaker 04: I don't think so. [00:04:50] Speaker 04: But if you have 1,750, I have a doctor who has given a medical opinion, which would have gotten me to a jury if I'd had a fat trial. [00:05:02] Speaker 04: Medical opinion, that to a reasonable degree of medical certainty, that number is 1,750. [00:05:06] Speaker 04: And it will produce, every year, 27 involuntarily pregnant women. [00:05:12] Speaker 04: That's just the fact. [00:05:15] Speaker 04: That's what happens in real life. [00:05:18] Speaker 04: So can I name that woman? [00:05:22] Speaker 04: No, I can't. [00:05:24] Speaker 04: And even if I could, I wouldn't tell you who she was. [00:05:27] Speaker 04: Because she's afraid to step forward and come into this court. [00:05:30] Speaker 02: And I totally understand that concern. [00:05:32] Speaker 02: And I'm incredibly sympathetic to every potential [00:05:39] Speaker 02: client that you have that would fall in that category. [00:05:43] Speaker 02: So we do have cases, of course, that deal with your issue in the Mi Familia and other cases where there's a clear case that someone would be affected as opposed to speculative, then there is some leeway in terms of naming an individual. [00:06:06] Speaker 02: But the question here [00:06:10] Speaker 02: is whether the harm at this stage is only speculative. [00:06:15] Speaker 04: Well, it's not because the harm is to TST. [00:06:18] Speaker 04: TST has made an affirmative decision to not provide its services in Indiana. [00:06:25] Speaker 04: This is not an organizational standing case. [00:06:27] Speaker 04: This is- Indiana or Idaho? [00:06:29] Speaker 04: I'm sorry. [00:06:29] Speaker 04: Idaho. [00:06:30] Speaker 04: I have a case in Indiana. [00:06:32] Speaker 04: You have to be Indiana. [00:06:33] Speaker 02: You just want to stick closer to the Ninth Circuit. [00:06:36] Speaker 02: I'm trying. [00:06:37] Speaker 01: Illinois starts with an I. Maybe we have nationwide jurisdiction. [00:06:42] Speaker 02: I don't know. [00:06:42] Speaker 02: But we'll stick to the Ninth Circuit for now. [00:06:45] Speaker 04: In today's world, who knows, right? [00:06:49] Speaker 04: We have standing separate and apart from organizational standing as a provider. [00:06:54] Speaker 04: of Abortifacients, because we have made an affirmative decision not to provide them in Idaho. [00:07:00] Speaker 04: That is precisely Foursquare within Doe v. Bolton, Planned Parenthood of Idaho versus Wasden, and McCormick versus Herzog. [00:07:08] Speaker 04: We have curtailed our liberty interests. [00:07:11] Speaker 04: When we were planning to build this clinic, we made this affirmative decision. [00:07:15] Speaker 04: We could have gone out, and actually have since, go out and find a Idaho licensed physician to provide services and do the things that we actually need to practically do in order to deliver this. [00:07:28] Speaker 04: The risk of doing that, what's the point if you're going to go to jail after you've set it up to provide abortions? [00:07:35] Speaker 04: We also, separate and apart from our standing as a provider, have standing as a religious organization. [00:07:44] Speaker 04: The Satanic Temple promotes the Satanic abortion ritual, a statement that a woman can make while having an abortion to alleviate guilt and shame. [00:07:54] Speaker 04: Unable to provide that anymore in Idaho, [00:07:57] Speaker 04: because there are no more abortions. [00:08:00] Speaker 04: That is an injury. [00:08:02] Speaker 04: Now, whether it complies with the current standards under the Havens Realty kind of remains to be seen because of the recent vacating of the Arizona v. Mays case about what the standards are for this kind of standing. [00:08:20] Speaker 04: But we certainly have lost the ability to do something that was a pre-existing [00:08:26] Speaker 04: process, pre-existing right that TST did, which was provoked this abortion ritual. [00:08:33] Speaker 04: Now, do we need in addition to that to have some kind of, I don't know, diversion of resources? [00:08:42] Speaker 04: That question remains to be seen, but if we do, then yes, we have. [00:08:47] Speaker 04: TST has spent over $100,000 to set up this clinic with the objective of providing abortion services throughout the United States and specifically providing them to its TST members. [00:09:00] Speaker 04: So we've got three different legs to stand on for the standing. [00:09:04] Speaker 04: I will grant you that my Singleton theory is probably the most [00:09:08] Speaker 04: aggressive of the three theories. [00:09:11] Speaker 04: But it's a valid theory. [00:09:13] Speaker 04: The case law is there. [00:09:14] Speaker 04: The reality is there. [00:09:16] Speaker 04: There are women who are being coerced into becoming mothers in the state of Idaho as I stand here today. [00:09:24] Speaker 04: And some of them are TST members. [00:09:27] Speaker 04: So we have standing. [00:09:29] Speaker 02: Where on the record do we see that your clinic has calls from Idaho? [00:09:36] Speaker 02: Is that in the record? [00:09:37] Speaker 02: Has what? [00:09:38] Speaker 02: Has calls, received calls from Idaho. [00:09:40] Speaker 02: No, we don't take calls from Idaho. [00:09:43] Speaker 02: We don't. [00:09:43] Speaker 02: But you see, we're kind of in this mobia, this loop of, well, we don't take the calls. [00:09:50] Speaker 02: So we think there's people there, but we don't know who they are. [00:09:53] Speaker 02: We can't identify them. [00:09:56] Speaker 02: It keeps moving more speculative in terms of your services. [00:09:59] Speaker 04: We know the people are there. [00:10:02] Speaker 02: I understand you have that clear belief [00:10:07] Speaker 02: But we have to get a little bit beyond that for standing, according to the cases. [00:10:13] Speaker 02: You say people are there. [00:10:15] Speaker 02: What Kay says, people are there is enough. [00:10:18] Speaker 04: Going back to the membership standing, OK? [00:10:21] Speaker 04: OK. [00:10:21] Speaker 04: And that this concern about having an actual patient does not apply for the other legs upon which we rely. [00:10:30] Speaker 04: We don't have to have an actual client in order to have standing as a provider. [00:10:35] Speaker 04: There was no actual customer or patient in any of those cases that I cited. [00:10:41] Speaker 04: They were all potential customers. [00:10:45] Speaker 04: There's nothing that requires, in terms of our standing as a religious organization, [00:10:53] Speaker 04: It's just you can deduce from the fact that before there's an abortion ban, you can provide the abortion ritual in Idaho. [00:11:03] Speaker 04: Once you have passed the abortion ban, done. [00:11:06] Speaker 04: It's not going to happen again. [00:11:08] Speaker 01: If I could just jump in just so I can better understand your standing theory. [00:11:11] Speaker 01: And I know you've got a few different theories that we can consider to get you past this problem. [00:11:16] Speaker 01: Yes. [00:11:17] Speaker 01: But let's say the University of Idaho Alumni Association. [00:11:22] Speaker 01: wanted to challenge this law. [00:11:25] Speaker 01: I assume under your theory, they could challenge it because they would say, look, we're the Alumni Association. [00:11:30] Speaker 01: We have our young Alumni Association section. [00:11:33] Speaker 01: We have women from 21 to 35. [00:11:36] Speaker 01: So under your theory, they could. [00:11:38] Speaker 01: So it doesn't have to be a provider in another state. [00:11:42] Speaker 04: Absolutely. [00:11:43] Speaker 04: That's the whole point of organizational standing. [00:11:45] Speaker 04: From the ACLU on is that individuals can get together, get with a group, and have the group represent [00:11:52] Speaker 04: their interests, okay, without having to actually show up and become a plaintiff. [00:11:59] Speaker 04: And it gives them some buffer, as it were, in the classic case of the ACLU, a buffer between the state and the individual. [00:12:09] Speaker 04: Okay, the question is, how speculative is it that these people are there, just by virtue of your example? [00:12:20] Speaker 04: Get a large enough number, you got enough people. [00:12:24] Speaker 04: So, how big is the number? [00:12:27] Speaker 04: How big is the number? [00:12:29] Speaker 04: How do you determine that? [00:12:31] Speaker 04: Okay, I tried to determine it by expert testimony. [00:12:36] Speaker 04: Got shot down without an overt hearing. [00:12:40] Speaker 04: They're free to come in and say, no, this is just totally speculative. [00:12:42] Speaker 04: There are no people out there. [00:12:44] Speaker 04: Fine, bring your expert in. [00:12:48] Speaker 04: Sit him down, let me ask him about it. [00:12:50] Speaker 04: the birth rates in Idaho, the abortion rates in Idaho. [00:12:55] Speaker 04: It depends on who you talk to, but the number of women who are becoming mothers by coercion, it depends on who you talk to, but it's anywhere from 20% to 40% of pregnancies. [00:13:11] Speaker 04: It's a serious problem. [00:13:13] Speaker 04: I'd like to reserve the rest of my time for rebuttal, if I may. [00:13:18] Speaker 03: Certainly. [00:13:21] Speaker 03: We'll hear from counsel for appellees now. [00:13:33] Speaker 03: Is that Mr. Hurst? [00:13:36] Speaker 05: Yes, may it please the court. [00:13:38] Speaker 05: I'm Alan Hurst here for Attorney General Labrador and Ada County prosecuting attorney Jan Bennett. [00:13:44] Speaker 05: Two points for me this morning. [00:13:45] Speaker 05: The first one that we haven't heard yet about is [00:13:48] Speaker 05: redressability, that none of Satanic Temple's harms are redressable, because even if they win everything they want in this case, they still can't ship abortion pills to Idaho. [00:13:57] Speaker 05: And the second point is speculation, which we have heard a little bit about, which all of their harms are speculative under all of their theories, because they have no proof that they have any members of the Satanic Temple in Idaho who are involuntarily pregnant or will be in the near future and who want an abortion. [00:14:15] Speaker 05: So as to redressability, [00:14:18] Speaker 05: The problem here is the unchallenged independent legal barriers. [00:14:22] Speaker 05: And most importantly, there's licensing requirements, and then there's also, of course, the requirement of an in-person exam and then a follow-up appointment. [00:14:32] Speaker 05: These things need to happen in person. [00:14:33] Speaker 05: They don't have facilities to do this in person. [00:14:35] Speaker 05: They have no plans to get facilities to do this in person. [00:14:38] Speaker 05: Their only response in their reply is they say, well, once we get an injunction against these laws, let me quote, [00:14:46] Speaker 05: TST can then turn its attention to how it will address any other legal impediments to providing a board of patients by telemedicine in Idaho. [00:14:55] Speaker 05: In other words, they have no idea whether they have valid challenges to these other barriers. [00:15:01] Speaker 05: They're just saying, we're going to do this piecemeal. [00:15:03] Speaker 05: We're going to do this one at a time. [00:15:05] Speaker 05: And if it turns out that the other laws that prohibit us from doing this are constitutional, [00:15:11] Speaker 05: I guess we tried. [00:15:12] Speaker 05: I don't know what they would say in that situation. [00:15:15] Speaker 02: Well, what if they had an individual identified who is a member of the Satanic Temple and lives in Idaho and she's two months pregnant as a result of an unwanted pregnancy. [00:15:31] Speaker 02: So she falls right in their category. [00:15:37] Speaker 02: Why wouldn't that at least give them standing to challenge the law as it sits now? [00:15:49] Speaker 05: Two answers to that. [00:15:51] Speaker 05: One legal and one factual, I would say. [00:15:52] Speaker 05: The first legal answer is that [00:15:56] Speaker 05: no remedy given to Satanic Temple could redress that woman's injury. [00:16:02] Speaker 05: Because even if the court said, speaking of the district court, even if the district court said, nobody in Idaho can enforce the abortion ban against you, there's still no order saying that you can do away with the requirement of the in-person visits. [00:16:18] Speaker 05: And so there they are in a situation. [00:16:21] Speaker 05: Either the woman has to go to New Mexico, in which case Idaho law doesn't apply to begin with, [00:16:26] Speaker 05: or Satanic Temple has to go up to Idaho, which they haven't alleged they're willing to do. [00:16:31] Speaker 05: So the remedy would still not redress the woman's harm in that case. [00:16:37] Speaker 05: The factual response is that, in fact, Satanic Temple requires people to come to New Mexico anyway. [00:16:47] Speaker 05: This was admitted at the hearing below, on pages 48 and 49 of the record, that counsel admitted that, [00:16:56] Speaker 05: no matter what state a woman is from, they will only provide abortion pills if she has her telehealth appointment while she is physically present in New Mexico, and they will only ship the abortion pills to mailing addresses in New Mexico. [00:17:15] Speaker 05: And it's not entirely clear why they limit themselves to this, but [00:17:22] Speaker 05: It seems further proof to me that there's no redressability here, because we have a wide variety of abortion laws in this country. [00:17:29] Speaker 05: We have strict bans like Idaho's. [00:17:31] Speaker 05: We have no bans. [00:17:33] Speaker 02: What you're saying is if somebody immediately after a situation believes that she needs a pill, that she would need to come under the satanic temples, [00:17:51] Speaker 02: Proviso, she would have to go to New Mexico. [00:17:54] Speaker 05: Yes. [00:17:55] Speaker 02: Not Idaho. [00:17:56] Speaker 05: That's correct. [00:17:56] Speaker 02: They're not shipping, of course, pills to Idaho. [00:18:00] Speaker 05: That is correct. [00:18:01] Speaker 05: They're not shipping pills to Idaho. [00:18:03] Speaker 05: They're not shipping pills to California. [00:18:04] Speaker 05: They're not shipping them to Washington, Colorado, all sorts of states where the services they want to provide are perfectly legal. [00:18:10] Speaker 05: It is their admission in the hearing below that they do not ship pills to those states either. [00:18:16] Speaker 05: And so I just don't see how their goal is to move Idaho from the strict ban category into a somewhat less strict ban category. [00:18:24] Speaker 05: But we already have states who are in these less strict ban categories, and they don't send pills there. [00:18:29] Speaker 05: So I don't see how an order of the court can create a situation where they will be willing to ship a pill to Idaho. [00:18:37] Speaker 05: It's just not going to happen. [00:18:41] Speaker 05: Their response and their reply to our addressability argument is that they cite Matsumoto, a case which I imagine your honors are familiar with, and in Matsumoto, partial relief was enough. [00:18:56] Speaker 05: And they say, well, this is partial relief. [00:18:59] Speaker 05: They say, once we invalidate this law, we can go after the other laws. [00:19:04] Speaker 05: But that's not the kind of partial relief. [00:19:05] Speaker 02: That's not what happened in Matsumoto. [00:19:07] Speaker 02: It was a single statute with multiple parts, correct? [00:19:10] Speaker 05: Correct. [00:19:11] Speaker 05: And some of those parts overlapped with independent prohibitions that weren't challenged. [00:19:16] Speaker 05: But other parts didn't. [00:19:18] Speaker 05: And so an order in that case, while it might not give them everything they wanted, it gave them something. [00:19:25] Speaker 05: After that order, there were actions that they could legally take in Idaho that they could not legally take beforehand. [00:19:31] Speaker 05: This isn't a partial relief case. [00:19:32] Speaker 05: This is a no relief case. [00:19:34] Speaker 05: There is no order that the district court could have entered that would let them do one thing in Idaho that they couldn't before the district court entered the order. [00:19:42] Speaker 05: That's advisory opinion territory. [00:19:43] Speaker 05: That's not a case or controversy. [00:19:45] Speaker 05: No redressability, no standing. [00:19:49] Speaker 05: So turning to this speculation issue that's been talked about earlier, just to walk through their chain of statistics and emphasize how speculative it is, [00:20:01] Speaker 05: They start with the Idaho rate of pregnancy, like annual rate of pregnancy for women in Idaho. [00:20:08] Speaker 05: And they give no evidence that their members in Idaho have the same pregnancy rate. [00:20:12] Speaker 05: They just assume that. [00:20:14] Speaker 05: The next step is they give the national rate of unintended pregnancies, and they give the national rate of birth control failure. [00:20:22] Speaker 05: Once again, no evidence that these rates apply equally to Satanic Temple members. [00:20:26] Speaker 05: Once again, and even further, no evidence these national rates even apply to Idaho generally. [00:20:33] Speaker 05: And then they get a number at the end. [00:20:35] Speaker 05: And the number they give us in their opening brief is 27, which is already not especially high for an annual figure. [00:20:42] Speaker 05: But then we pointed out some problems with their theory in our brief. [00:20:46] Speaker 05: And in their reply brief at page 21, they admit, yeah, actually, it's three. [00:20:51] Speaker 05: Actually, at the end of our chain of probabilities, we have the number of three women who are involuntarily pregnant. [00:20:59] Speaker 05: And then they still don't take the next step. [00:21:01] Speaker 05: They still don't give us any information about what percentage of involuntarily pregnant women actually want abortions. [00:21:08] Speaker 05: And so it could very easily be zero. [00:21:12] Speaker 05: If any of their statistics are off, which they could easily be, the number of involuntarily pregnant women could also be zero. [00:21:20] Speaker 05: This court doesn't need to figure out how Mi Familia relates to associated general contractors and to Summers because even under Mi Familia, this doesn't work. [00:21:30] Speaker 05: Mi Familia says you need a name of an identifiable individual who's harmed unless it is clear and not speculative that people are in fact harmed. [00:21:44] Speaker 05: And I look at this and say, this is completely unclear. [00:21:46] Speaker 05: This is entirely speculative. [00:21:48] Speaker 05: This wouldn't have satisfied Mi Familia, and it certainly wouldn't have satisfied Summers. [00:21:52] Speaker 05: The theory we heard a moment ago about once you get enough people, you must have standing. [00:21:59] Speaker 05: For one, that's a dangerous theory because there are some organizations with a lot of people in this world. [00:22:03] Speaker 05: The AARP, I think, has 40 million members. [00:22:06] Speaker 05: By their theory, they would be able to challenge basically every law in the United States. [00:22:11] Speaker 05: But this once you have enough people theory was rejected by the Supreme Court in the summers. [00:22:17] Speaker 05: The Sierra Club said effectively, we have hundreds of thousands of members. [00:22:21] Speaker 05: They're involved in the Sierra Club. [00:22:23] Speaker 05: We know that because they're involved in the Sierra Club, we expect they're probably going to visit national parks and national forests. [00:22:30] Speaker 05: And if enough of them visit national parks and national forests, then some of them are certain to come across locations in those forests that have been affected by the policy we're challenging. [00:22:40] Speaker 05: And the Supreme Court said, no, that's not good enough. [00:22:44] Speaker 05: It said, let me see, the requirement of naming the affected members has never been dispensed with in light of statistical probabilities. [00:22:52] Speaker 05: And that's all we have here. [00:22:54] Speaker 05: Their argument to distinguish Summers is, well, we give numbers. [00:22:57] Speaker 05: We have stats. [00:22:58] Speaker 05: We have percentages. [00:22:59] Speaker 05: And whereas Summers just kind of eyeballed it. [00:23:02] Speaker 05: But it's still statistics. [00:23:04] Speaker 05: You look at Mi Familia Vota, you will see no statistics. [00:23:07] Speaker 05: So statistics don't do it. [00:23:09] Speaker 05: They need a name. [00:23:09] Speaker 05: They don't have one. [00:23:11] Speaker 05: The final point I'd like to make on this issue. [00:23:14] Speaker 02: Let me ask about. [00:23:18] Speaker 02: Had they affirmatively said, we have all the infrastructure, we have the members, we will set up an abortion clinic in Idaho to dispense these pills, except right now, we would be criminally prosecuted. [00:23:34] Speaker 02: But we intend to do that. [00:23:36] Speaker 02: Would that be a different case? [00:23:39] Speaker 05: It would certainly be a different case. [00:23:40] Speaker 05: Oh, certainly. [00:23:40] Speaker 02: Obviously, a different case. [00:23:41] Speaker 02: But would that give them enough foundation to allege standing if they actually had an intent [00:23:47] Speaker 02: to proceed with the infrastructure to violate the statute. [00:23:51] Speaker 05: So defining what level of intent is needed is more of an art than a science, right? [00:23:57] Speaker 05: It's a bit messy. [00:23:59] Speaker 05: I think it's Lujan that has the notion of if you're affected by environmental policies in another country, you don't need to actually buy the ticket to go to that country, but it needs to be more than I'd like to visit someday. [00:24:10] Speaker 05: And where you draw the line between those two is pretty difficult. [00:24:14] Speaker 05: The cases this court has seen, abortion cases out of Idaho this court has seen, which there have been more than a few. [00:24:21] Speaker 02: Quite a few. [00:24:21] Speaker 05: Yes. [00:24:22] Speaker 05: Notice that those cases are all, we have doctors in Idaho. [00:24:26] Speaker 05: We provide abortions in Idaho. [00:24:28] Speaker 05: We have patients in Idaho. [00:24:29] Speaker 05: So that's clearly enough. [00:24:31] Speaker 02: Now, if it's- Don't even, as I understand it, there's only a nurse practitioner in New Mexico? [00:24:37] Speaker 05: I think she's, I'm not sure she's even a nurse practitioner. [00:24:39] Speaker 05: It's an APRN, which is an advanced practice registered nurse. [00:24:43] Speaker 02: But she's not an MD. [00:24:44] Speaker 05: Not an MD, that is my understanding. [00:24:47] Speaker 05: And Idaho law says physician who can perform abortions, and that provision isn't challenged either. [00:24:54] Speaker 05: So where exactly the line is, the Thomas case that has factors that this court uses to sort of give more detail to the dry house factors, [00:25:04] Speaker 05: says a concrete plan. [00:25:06] Speaker 05: So yes, at some point, their plan would be concrete enough and their intention would be clear enough to build that clinic in Idaho that we would have to say, yes, they have standing. [00:25:15] Speaker 05: I don't know exactly what that point is, but it's certainly well north of where we are here. [00:25:23] Speaker 02: He raised at the end of his argument the question about that this fundamentally is religious discrimination. [00:25:31] Speaker 02: What is your response on that? [00:25:33] Speaker 05: Well, they did plead a religious claim below, an Idaho State RFRA claim. [00:25:39] Speaker 05: They did not defend it at the motion to dismiss stage. [00:25:42] Speaker 05: They asked Leave to replede, remove that claim, and replace it with a First Amendment claim. [00:25:46] Speaker 05: Leave was denied. [00:25:47] Speaker 05: They haven't appealed that decision. [00:25:49] Speaker 05: So as far as on the merits, they've not addressed that. [00:25:52] Speaker 02: OK. [00:25:52] Speaker 02: I thought that was the case, but I just wanted to hear what the procedural posture was. [00:25:57] Speaker 05: Thank you. [00:25:58] Speaker 05: That's correct. [00:26:04] Speaker 05: Then as far as they talk about their three-legged stool, we've talked about two of those three legs thus far as I've been up. [00:26:10] Speaker 05: We've talked about associational standing, and we've talked about sort of organizational or pre-enforcement type standing. [00:26:16] Speaker 05: They've also talked about the diversion of resources standing. [00:26:18] Speaker 05: And as we've argued in our briefs, we don't think diversion of resources is a valid theory anymore. [00:26:25] Speaker 05: Exactly how that's going to play out in the Ninth Circuit will be decided, I'm sure, by the pending on Bonk case that was just announced last week, I think. [00:26:35] Speaker 05: But I think the Supreme Court was pretty clear that [00:26:43] Speaker 05: Diversion of resources standing is no longer a thing. [00:26:46] Speaker 05: That Haven's Realty is just a normal standing case. [00:26:49] Speaker 05: Haven's Realty was not because they had a social mission that was frustrated. [00:26:56] Speaker 05: It was they had an activity they were doing. [00:26:59] Speaker 05: They were providing counseling, and the people they were suing had interfered with their provision of counseling. [00:27:05] Speaker 05: And in that case, an organization would have standing, regardless of whether it has some abstract purpose or any diversion of resources or what have you. [00:27:12] Speaker 05: But once again, that's not this case. [00:27:14] Speaker 05: Their argument in their reply brief is that [00:27:18] Speaker 05: that they have a pre-existing core activity of promoting the satanic abortion ritual in Idaho. [00:27:25] Speaker 05: But they have no evidence that any pre-existing core activity of that sort actually existed. [00:27:30] Speaker 05: So far as the evidence they have given us shows, the satanic abortion ritual has never taken place in Idaho. [00:27:39] Speaker 05: And they have done nothing specifically in Idaho to promote it there. [00:27:42] Speaker 05: They can't identify anybody who is interested in Idaho beyond being able to say we have a certain number of members. [00:27:48] Speaker 05: And once again, in fact, we know that the clinic does not have a pre-existing activity of providing abortions in Idaho because the clinic only provides abortions to people who are physically present in New Mexico. [00:28:02] Speaker 05: So if the court has no further questions. [00:28:05] Speaker 01: I just wanted to actually thank you for your 28-J letter. [00:28:10] Speaker 01: No, because a lot of times, I know that case didn't come out maybe the way that you were hoping for with this case, but at least you acknowledge it and explain why you should still prevail. [00:28:19] Speaker 01: And a lot of lawyers don't do that. [00:28:22] Speaker 01: So it's actually encouraging to see someone do the right thing, which is what you did with that letter. [00:28:27] Speaker 05: I appreciate your honor. [00:28:28] Speaker 05: I much prefer doing that to being blindsided when I get up here. [00:28:32] Speaker 02: Well, I agree. [00:28:32] Speaker 02: I mean, we always appreciate [00:28:36] Speaker 02: discussion of these recent cases, because they may or may not support you. [00:28:41] Speaker 02: But you can't predict that in advance, right? [00:28:45] Speaker 02: No. [00:28:45] Speaker 02: Thank you. [00:28:46] Speaker 05: Thank you, Your Honors. [00:28:47] Speaker 05: I request that you affirm it. [00:28:52] Speaker 03: OK. [00:28:52] Speaker 03: So we have some time for a vote. [00:29:02] Speaker 04: Why limit to New Mexico? [00:29:04] Speaker 04: Because nobody will go to jail. [00:29:06] Speaker 04: Very simple, okay? [00:29:08] Speaker 04: The plan was to create a clinic, and it uses the telemedicine model. [00:29:13] Speaker 04: And the way the telemedicine model works is you call up, you have a virtual consultation with an APRN. [00:29:21] Speaker 04: The APRN prescribes the pills, they get delivered by U.S. [00:29:26] Speaker 04: mail. [00:29:27] Speaker 04: In New Mexico, that's in compliance with New Mexico law, and it's in compliance with the FDA requirements for the distribution of Mifoprestone. [00:29:37] Speaker 04: Now, what is the next step that we would have to take to provide service in Idaho? [00:29:47] Speaker 04: Get an Idaho licensed physician to be on the other end of that call and make that prescription. [00:29:53] Speaker 04: That's all we need, and we have that person we had planned or had a contingency to get that person from the get-go, but we have not hired them because what's the point? [00:30:06] Speaker 04: What's the point of becoming licensed in Idaho? [00:30:10] Speaker 04: It's an act of futility. [00:30:12] Speaker 04: We're subject to the criminal penalties, regardless of whether we're licensed in Idaho, regardless of whether we are APRNs, regardless of whether we are physicians. [00:30:25] Speaker 04: Council for Idaho says, we have no redress. [00:30:29] Speaker 04: If you strike down section 605 as applied to involuntarily pregnant women, you still have to contend with having a facility. [00:30:38] Speaker 04: You still have to contend with getting a sonogram. [00:30:43] Speaker 04: The penalties for not doing that are found in section 605-3. [00:30:49] Speaker 04: And they are the same as the penalties for section 605-1. [00:30:54] Speaker 04: So yes, we are asking for a redress. [00:30:57] Speaker 04: We are asking to strike down those criminal penalties for those requirements, in-person examination, use of hospital facilities. [00:31:08] Speaker 04: The only other one that they pointed out was the doctor. [00:31:11] Speaker 04: And like I said, we've got a doctor. [00:31:14] Speaker 04: We can do this. [00:31:16] Speaker 04: This is not a someday proposition. [00:31:19] Speaker 04: We could put it in place by the beginning of next week, easily. [00:31:23] Speaker 04: So the redress argument has no merit. [00:31:33] Speaker 04: We don't need a name. [00:31:35] Speaker 04: This circuit recently held. [00:31:37] Speaker 04: We do not need a name provided it's clear that somebody is being represented. [00:31:44] Speaker 04: And I come back to the practical issues that we face here. [00:31:52] Speaker 04: I would never, to be honest with you, I would never represent somebody from Idaho as a Jane Doe because I can't put her at risk. [00:32:02] Speaker 04: I can't put myself at risk. [00:32:05] Speaker 04: I cannot emphasize to you much. [00:32:08] Speaker 04: I've had these conversations over the years. [00:32:10] Speaker 04: I've been doing this now for about three or four years. [00:32:14] Speaker 04: And it's scary. [00:32:16] Speaker 04: People say, you know, I'd like to help you. [00:32:19] Speaker 04: You know, I'd like to stand up. [00:32:20] Speaker 04: I'd like to be counted. [00:32:22] Speaker 04: But I've got a practice. [00:32:25] Speaker 04: I have a medical practice I have to live in this community. [00:32:30] Speaker 04: OK? [00:32:35] Speaker 04: I circle back to the ACLU, that the whole point of having an organization to represent you is so that you can conduct your business, your personal private business, your personal religious business, your personal medical business, in private. [00:32:52] Speaker 04: All right? [00:32:53] Speaker 04: That's not an insult to the Constitution. [00:32:55] Speaker 04: That's not an insult to your authority. [00:32:58] Speaker 04: Okay? [00:32:58] Speaker 04: You just need to know there's one of them. [00:33:02] Speaker 04: Just one. [00:33:04] Speaker 04: There's at least three under his analysis of my data. [00:33:11] Speaker 04: Summers. [00:33:12] Speaker 04: Summers, Sierra Club says we've got 3,000 members. [00:33:16] Speaker 04: We've got 700,000 members. [00:33:18] Speaker 04: It's like you're with the Alumni Association. [00:33:22] Speaker 04: We have X number of members. [00:33:24] Speaker 04: Therefore, you can deduce from that there are X number of women, da-da-da-da-da. [00:33:28] Speaker 04: But if you started with your Alumni Association and you just simply said we've got 700,000 members under Summers, that would not be enough. [00:33:37] Speaker 04: You'd need to do something to show that some of those members wound up going to those parcels of land that were at issue in Summers. [00:33:46] Speaker 04: Well, how would you do that? [00:33:48] Speaker 04: You could ask your members. [00:33:50] Speaker 04: They might tell you. [00:33:51] Speaker 04: They might not. [00:33:51] Speaker 04: They might say, I don't want to get involved. [00:33:55] Speaker 04: OK? [00:33:55] Speaker 04: Or you can take what you got. [00:33:57] Speaker 04: These statistics are government statistics. [00:34:01] Speaker 04: These are the statistics that the government uses to do its policy and its planning. [00:34:07] Speaker 04: These are not pulled out of thin air. [00:34:10] Speaker 04: They're real numbers, real numbers. [00:34:14] Speaker 04: And if you just do the math, you come down to 27. [00:34:19] Speaker 04: Or if you want to say, you've got to use your birth control correctly, it comes down to three. [00:34:27] Speaker 04: But as sure as I'm standing here talking to you, that person is there. [00:34:33] Speaker 04: And you know it. [00:34:35] Speaker 04: You know it. [00:34:36] Speaker 04: And you have to. [00:34:39] Speaker 04: get to the point of saying, I'm going to grapple with these other issues. [00:34:43] Speaker 04: And they are substantial, and they are huge. [00:34:47] Speaker 04: I'm going to take on these other issues, because I'm going to say, you know what? [00:34:53] Speaker 04: This is so obvious. [00:34:55] Speaker 04: Somebody in this state, represented by the Satanic temple, is being hurt by it. [00:34:59] Speaker 04: The Satanic temple is being hurt. [00:35:01] Speaker 04: It cannot do its job. [00:35:03] Speaker 04: It cannot do its mission. [00:35:07] Speaker 04: and because it'll go to jail. [00:35:11] Speaker 04: Unless you have any further questions, I have nothing further to say. [00:35:15] Speaker 03: Thank you. [00:35:17] Speaker 04: Thank you. [00:35:18] Speaker 03: Thank you, counsel. [00:35:20] Speaker 03: We appreciate the excellent argument on both sides of the case. [00:35:27] Speaker 03: The St. [00:35:28] Speaker 03: Tanec Temple case will now be submitted, and we will adjourn for the day.