MARSHAL: ALL RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW SESSION.ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , G IVE ATTENT ION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THEFLORIDA SUPREME COURT. PLEASE BE SE ATED.

CHIEF JUSTIC E: GOOD MORNING , LADIES ANDGENTLEMEN, AND WELCOME TO THE FLORIDA SUPREME COURT . I WOULD ALSO LIKE TO WELCOME THE JUST ICE OVERTON CONSTITUTIONAL LAW SEMINAR FROM THE UNIVERSITY OF FLORIDA LAW SCHOOL. THE FIRST CASE ON OUR DOCKET IS THE ST ATE OF FL ORIDA VERSUS PRESIDENTAL WOMEN'SCENTER. PARTIES READY?

MAY IT PLEASE THE CO URT. L OUIS HUBENER WITH THE OFFICE OF THE ATTORNEY GENERAL , REPRESENTING THE AELLANTS . IN THIS C ASE , THE T WO L OWER COURTS HELD THE WOM AN'S LIGHT TO KNOW A CT , W HICH "WOMAN'S RIGHT TO KNOW" ACT , WHICH REQUIRES THE PHYSICIAN TO OBTAIN CO NSENT BEFORE PERFORMING A WOMA N'S ABORTION SURGERY , U NDER THE CONSTITUTIONAL L EAST INTRUSIVE M EANS TEXT. THEY, ALSO , HELD PART OF THE ACT ADOPTING THE WELL RECOGNIZED REASONABLE PATIENT STANDARD , UNCONSTITUTIONALLY VAGUE. WE SUBMIT THAT THE COURT ERRED IN EVEN ALYING THE COMPELLING INTEREST TEST. THE PLAINTIFFS NEVER PROVED AND N EVER REALLY ATTEMPTED TO PROVE THAT THE ACT RESTRICTED A WOMAN'S DECISION.

CHIEF JUSTICE: IS FAR AS THIS COURT'S GE NERAL CON SENT , MEDICAL STATUTES THAT AP PLY AND ALY T O ABORTIONS AS A PROCEDURE, ARE THERE O THER EXAMPLES IN THE STATE STATUTE OF OT HER SPECIFIC INFORMED CONSENT STAT UTES ?

I AM NOT AWARE OF ANY AND NONE OF THEM ARE AR GUED IN THE BRIEF.

CHIEF JUSTICE: D O WE KNOW WHAT THIS W AS, WHAT , LET'S JUST A S SUME THERE IS A TEST WITH ST RICT SCRUTINY. WHAT IS THE COMPELLING STATE INT EREST IN H AVING THIS STATUTORY SC HE ME?

WELL , THE , IT IS LIKE ANY OTHER MEDI CAL SURGICAL PROCEDURE. THE STATE HA S AN INTEREST IN HAVING THE PE RSON WHO I S G OING TO UNDERGO OR POTENTIALLY UNDERGO A SURGICAL PROCEDURE, BE F ULLY INFORMED ABOUT WHAT IS GOING TO HA EN AND THE CONSEQUENCES.

CHIEF JUST ICE: THAT IS COVERED , THOUGH , GENERALLYBY THE MED ICAL CONSENT STATUTE.

WELL, NOT NECESSARILY. THERE ARE DIFFERENCES, ANDTHE MOST SIGNIFICANT ONE IS THAT THE GENE RAL MEDICAL CONSENT STATUTE, WHICH I S 766.103 , DOESN'T ACT UALLY REQUIRE IN FORMED CONSENT. WHAT IT IS , IS A BAR TO AN ACTION FOR DAMAGES AGAINST A PHYSICIAN, IF THE PHYSICIAN COMPLIES WITH THAT STATUTE .

CHIEF JUSTICE: SO, THEN , WHY PICK OUT ABO RTION OR TERMINATION OF PREGNANCY , HOWEVER IT IS FRAMED , AS THE ONE MEDICAL PROCEDURE THAT REQUIRES A SPECIFIC INFORMED WRITTEN CONSENT? I AM JUST HAVING TROUBLE , AND THERE IS CERTAINLY MA NY MORE HIGH-RISK VOLUNTARY SURGERIES THAT PE OPLE GO THROUGH EVERYDAY.

WELL , ONE REASON YOU MAY BE HAVING T ROUBLE IS A CASE DECIDED ON MOTION FORSUMMARY JUDGMENT , ARG UING THAT THE STATUTE WAS FACIALLY UNCONSTITUTIONALLY UNCONSTITUTIONAL , AND THE LOWER COURTS CONSIDERED NO EVIDENCE. NOW, THERE IS IN THE RECORD FROM THE STATE, AN AFFIDAVIT OF A PHYSICIAN WHO PRACTICES IN THIS AREA , THAT EXPLAINS JUST HOW VULNERABLE WOMEN ARE IN THIS SITUATION , ANDTHAT THEY DO NOT ORDINARILY , IF EVER , RE PORT SUBSTANDARD CARE. THEY DO NOT REPORT THE FACT THAT THEY MAY NOT HAVE BEEN INFORMED, FULLY INFO RMED OF WHAT WAS GOING TO MANY TO THEM. THEY DI DN'T KNOW EX ACTLY WHAT THEY WERE F ACING AND THE POTENTIAL FOR CONSEQUENCES.

I WONDER IF YO U ARE R I GHT THAT THERE IS NO OTHER INFORMED CONSENT STATUTE.

NO , I DIDN'T SA Y THERE WASN'T. I JUST SAID

I NOTICE IN JUDGE KLEIN'S OPINION, IN THIS CASE , ON THE TEMPORARY INJUNCTION , THAT HE REF ERS TO 458.324 , WHICH IS AN INFORMED CONSENTFOR WOMEN WITH B REAST C A NCER , IN WHICH IT IS PROV IDED THAT THE PHYSICIAN MUST TAKE INTO CONSIDERATION THE EMOTIONAL STATE OF THE PA TIENT , PHYSICAL STATE OF THE PATIENT , AND THE PATIENT'S ABILITY TO UNDERSTAND THE INFORMATION.

WELL , THAT I S WHAT , ALSO , THAT IS LI MITED TO THAT S ITUATION. THE "WOMAN'S RIGHT TO KNOW"ACT ADDRESSES A SITUATION WHERE A WOMAN IS CONSIDERING ABORTION SURGERY, AND SH E HAS THE SAME RIGHT AS THE WOMAN IN THAT SITUATION , TO BE FULLY INFORMED ABOUT WHAT IS GOING TO HAEN AND THE CONSEQUENCES.

THERE IS A STATUTE THAT DEALS WITH IT.

YES, THAT IS ONE, BUT I AM NOT FULLY FAMILIAR WITHTHE RANGE OF THEM, BUT IF THAT IS AN EXA MPLE , THEN THEY ARE CONFINED TO PARTICULAR SITUATIONS . BUT IN ANY CASE , I THI NK THEY RECOGNIZE THAT

WHAT WE ARE DEALING WITH ALL TH OUGH YOU HAVEN'T ARTICULATED IT OUT LO UD , IS THE RIGHT TO PRIVACY , IS THAT CORRECT?

THAT'S CORRECT.

ALL RIGHT. SO THAT IS WHERE YOU ARE TALKING ABOUT WHET HER OR NOT THE STRICT SCRUTINY STANDARD ALIES TO AN ANALYSIS , WHETHER OR NOT THIS STATUTE VIOLATES A WOMAN'S RIGH T TO PRIVACY , IS THAT CORRECT?

I THINK THAT IS THE ARGUMENT OF THE AELLEE S , BUT WHAT I

ISN'T THAT - - OKAY. WE WOULDN'T BE TALKING ABOUT , IF W E WEREN'T TALKING ABOUT THE RIGHT OF PRIVACY. WHAT IS THE CURRENT STATE OF THE LAW? FOR INSTANCE, OUT OF THE U.S. SUPREME COURT , MUCH LESS OUT OF THIS COURT , WITH REFERENCE TO , FOR IN STANCE , THE STATE'S AUTHORITY D URING THE FIRST TRIMESTER OF A PREGNANCY, TO PUT ANY B U RDEN ON THE WOMAN'S RIGHT TO CHOOSE OR RIGHT TO PRIVACY , AS IT HAS BEEN ARTICULATED? WHAT IS THE CURRENT STATE OF THE LAW , WITH REFERENCE TO THE STATE'S AUTHORITY TO P LACE ANY BURDEN ON THAT , EXERCISING THAT?

WELL , THE CUR RENT STATEOF THE LAW IS ARTICULATED IN PLANNED PARENTHOOD V ERSUS CASEY , IN WHICH THE COURTWENT FROM A STRICT SCRUTINY STANDARD TO AND D O BURDEN STANDARD. THIS COURT , HAS IN ITS RECENT CASE LAW, AD HERED TO THE STRICT SCRUTINY STAN DARD, WHEN THE RIGHT IS IMPLICATED. NOW, THE SUPREME COURT SAID , LONG AG O IN THE DANFORTH CASE AND CITY OF AKRON , WHICH WAS DECIDED IN 19 83 , THAT FIRST TRIMESTER REGULATIONS ARE PERMIS SIBLE, IF THEY HAVE NO SIGNIFICANT IMPACT ON THE WOMAN'S RIGHT , AND THEY MUST SUORT A HEALTH-RELATED IS SUE , SO YOU MUST START WITH TRYING TO F IND OUT WHETHER THE REGULATION AT ISSUE HAS A SIGNIFICANT IMPACT ON THE WOMAN'S OR SIGNIFICANTLY RESTRICTS THE WOMAN'S DECISION.

YOU ARTICULATED THAT , IF THE RIGHT TO PRIVACY IS IMPLICATED, THAT WE HAVE SAID THAT YOU HAVE T O EMPLOYEE THE STRICT SCRUTINY STANDARD TO EM PLOY THE STRICT SCRUTINY STANDARD, AND ISN'T THAT EXACTLY WHAT WE HAVE SAID IN CH ILES VERSUS STATE EMPLO YEES.

IN RENE VE RSUS STATE AND MOST RECENTLY IN THE NO RTH F LORIDA WOMEN'S HEALTH AND COUNSELING CE NTER CASE,WHICH WAS THE PARENTAL NOTIFICATION REQUIREMENT , IS THAT YOU, FIRST, HAVE TO CONSIDER WHETHER THE REGULATION OR THE STATUTE SIGNIFICANTLY RESTRICTS THE WOMAN'S DECISION . THAT IS WHERE YOU BEGIN.

IT AEARS THAT WE CAPITAL EVEN AGREE ON WHAT THE STANDARD IS IN THIS AREA , SO IT AEARS THAT WE DO NEED TO HAVE SOME CLARIFICATION, THEN, BECA USE YOU DO FIND THOSE WO RDS "NTW" , BUT HOW DO YOU SQUARE THAT

ABSOLUTELY.

WITH THE NORTH FLORIDACASE THAT REJAEKTED THE UN REJ ECTED THE UNDUE BURDEN STANDARD OF CASEY. IS IT A SIGN IFICANT RESTRICTION STANDARD.WE KNOW WE DON'T LOOK AT AN UNDO BURDEN , WHICH SEEMS TO BE LESS AF TER STANDARD, S O WHY NOT ACKNOWLEDGE WHEN IT IS IMPLI CATED, THAT LEVEL OF SCRUTINY BECOMES ALICABLE , SO WE NEED TO CLARIFY.

IN THE NORTH FLORIDA WOMEN'S HEAL TH AND COUNSELING CENTER CASE , THAT CONCERNED A REQUIREMENT OF PARENTAL NOTIFICATION.

RIGHT.

NOW, THAT OBVIOUSLY , RESTRICTS THE DECISION, SO , AND THAT IS WHAT YOU SAID , SO THEREFORE YOU ALY THE COMPELLING STATE INTEREST LEAST INTRUSIVE M E ANS TEST TO THAT.

BUT DO W E NOT REJECT THE UNDUE BURDEN STANDARD OF CASEY?

YES , YOU DID.

HOW CAN WE SQUARE THESE TWO ? Y OUR ARGUMENT THAT IT MUST BE SIGNIFICANT.

WELL, YOU SAID THAT THE UNDUE BURDEN STANDARD WAS INHERENT LY VAGUE, BUT NOWYOU, IN THE SAME CASE, ALIED THE SIGNIFICANT RESTRICTION TO DETERMINETHAT THE RIGHT WAS AFFECTED, WAS RESTRI CTED, AND THEREFORE YOU ALY , AL IED THE COMP ELLING STATE INTEREST DECEMBER.

WHAT DOES INTEREST TEST.

WHAT DOES L ROW SAY ABOUT THE STATE 'S REGULATORY P OWER , WITH REGARD TO INFORMED CONSENT. IN THE REGULATION OF MEDICAL , PROVIDING MEDICAL SERVICES IN THIS AREA , WHAT DOES ROESAY ABOUT THAT ?

WELL , ROWE SAYS THAT THE STATE DOES NOT HAVE A COMPELLING INTEREST IN THE WOMAN'S HEALTH , AND THE FIRST TRIM ESTER AND THEREFORE IT BECOMES INCREASINGLY SIGNIFICANT IN THE SE COND TRIMESTER , AND IN THE THIRD , THE STATE CAN PROHIBIT ABORTI ONS , WITH CERTAIN EXCEPTIONS FOR LI FEAND HEALTH. IN SUBSEQUENT DECISIONS , THE C ITY OF AKRON AND THE DANFORTH DECISION , THE COURT HAS CLEARLY SAID THAT YOU CAN , THAT INFORMED CONSENT IS PERMISSIBLE. IT IS RECOGNIZED THE IMP ORTANCE OF IT , AND IT IS SAID THAT , EVEN IN THE FIRST TRIMESTER , THE STATE CAN REQUIRE INFORMED CONSENT .

CHIEF JUSTICE: BUT WHAT ABOUT THORNBERG ?

THORNBURGH IS NO DIFFERENT.

IT SAY S REQU IRED MATERIALS , MA KING THE STATE

IT DEPENDS ON THE CON TENT OF THE MATERIALS.

CHIEF JUSTICE: BUT PART OF THE STATUTE IS HAVING TO PRO VIDE PRI NTED MATERIALS TO THE , THAT ARE PROVIDED BY THE DEPARTMENT, THAT INCLUDES SOMETHING , I AM NOT SURE, WASN'T ABLE TO QUICKLYLOCATE IT , BUT A F ETUS PICTURE.

WELL , THAT , YOUR HONOR , HAS NOT, TO THIS PO INT , REALLY BEEN AN ISSU E IN THE CASE. IT WAS NOT RAISED BY THE MOTIONS FOR SUMMARY JUDGMEN T , AND THE REASON WAS , WAS BECAUSE THAT THESE MATERIALSHAD NOT BEEN PREPARED . THE U.S. SUPREME COURT HAS RECOGNIZED THAT MATE RIALS THAT SI MPLY PROVIDE INFORMATION ABOUT PO SSIBLE FINANCIAL RESOURCES TO THEWOMAN , IF SHE CHOOSES NOT TO HAVE THE ABORTION , OR PROVIDE INFORMATION ON ALTERNATIVE AG ENCIES THAT PROVIDE ALTERNATIVES AND AREWILLING TO A S SIST , IS PERMITTED, AND THAT IS THECITY OF AKRON , FOOTNOTE 37.

BUT HOW DO YOU DEAL, WITH YOU ARE ONLY DEALING WITH ONE PORTION BE FORE WHAT A KRON SAYS , AND THAT IS CORRECTLY , THAT THE STATE D OES HAVE AN INTEREST ANDFURTHER INTEREST IN INFORMED CONSENT , BUT THEN IT GOES ON IN QUOTES , EVEN THIS M INOR REGULATION DURING THE FIRST TRIMESTER, MAY NOT INTERFERE WITH A PHYSICIAN/PATIENT CONSULTATION, SO HOW DO YOUSQUARE? I T HAS GOT TWO PARTS. H OW DO YOU SQUARE THE OTHERPART?

I THINK YOU HAVE TO LOOK AT WHAT YOU ARE TALKING ABOUT A S AN INTERF ERENCE , AND THAT MAY REQUIRE SOME EVIDENCE. WHAT IS THE INTERFERENCE HERE ? I DON'T THIN K THAT THAT HAS BEEN ARTICULATED , AND IT HAS CERTAINLY NOT BEEN PROVED AND HAS BEEN THE SUB JECT OF EVIDENCE. THE MATERIALS THAT MR. CHIEF JUSTICE

JUST SO I UNDERSTAND THE PROCEDURAL POSTURE, BECAUSE IF WE PRESUME THE COMPELLING STATE INTEREST STANDARD AND WHAT WE SAID I N NORTH FLORIDA , THE STATE WO ULD HAVE THE BURDEN TO PROVE THAT , WHY THIS REGU LATION , WHY THE STATUTE WAS NECESSARY . WAS THERE , DID YOU HAVE EVIDENCE THAT YOU WERE PREPARED TO PRESENT AT A HEARING?

WE WERE WORKING ON. THAT WE WERE DEVELOPING IT. WE WERE UNDE RTAKING DISCOVERY.WE HAD , THERE IS THE AFFIDAVITS F ROM TWO PHYSICIANS THAT SUP PORT THIS LAW. WHEN, I THINK I MAY SAY THIS , WHEN THE OTHER SIDE SAW WHERE WE WERE G OING , THAT WE WANTED TO DEVEL OP AN EVIDENTIARY CASE , THEY CEASED COOPER ATING IN DISCOVERY, FI LED THE M OTION FOR SUMMARY JUDGMENT ARGUING THAT THE STATUTE WAS FACIALLY UNCONSTITUTIONAL , AND THAT IS HOW THE COURT D ECIDED , THE LO WER COURT IS TAKING, SAYING THAT EVIDENCE WAS SIMPLY NOT RELEVANT , AND I THINK THAT THAT IS AN ISSUE. I THINK EVIDENCE IS AN ISSUE .

SO WHAT WOULD THE EVIDENCE, WHAT WOULD IT BE RELEVANT TO?

WELL , I THINK IT WOULD BE RELEVANT TO , NUMBER ONE , THE N ATURE O F THE POPULATION , THE WOMEN YOU ARE DEALING WITH IN THE PARTICULARLY VULNERABLE SITUATION THAT YOU ARE IN, THE CONSEQUENCES TO THEM IF THEY ARE NOT F ULLY INFORMED OF THE RISKS THEY ARE TAKING, AND WHAT IS GOING TO MA NY TO THEM. JUST AS ANY OTHER MEDICAL SITUATION.

BUT YOU ALREADY HAVE THAT , DON'T YOU? I ME AN, WITH OUT THE STATUTE, YOU STILL HAVE THEREQUIREMENT THAT THERE BE AN INFORMED CONSENT , DO YOU N OT?

NO.

YOU DO NOT FOR MEDICALCARE?

YOU HAVE 766.103 , WHICH IS THE GENERAL STATUTE, WHICH IS NOT THEREQUIREMENT. IT SIMPLY IN HAVE YOU LATES , PROTECTS THE PHYSICIANS FROM A - - IN SULATES , PROTECTS THE PHYSICIANS FROM A DAMAGES ACTION. THAT PROVISION HAS NO PENALTY, IF THE PHYSICIANDOES NOT COMPLY WITH IT.

CHIEF JUSTICE: DID THE LEGISLATURE TAKE TESTIMONY , I MEAN, DO WE KNOW WHAT MOTIVATED THEM , BECA USE TO BE PERFECTLY HONEST AS YOU READ IT , REA D THE STATUTE , HAVE THE FE ELING THAT WHAT THIS IS ATTEMPTING TO DO IS TO CONVINCE A WOMAN THAT SHE SHOULD NOT HAVE AN ABORTION AND SH OULD TAKE THE CHILD TO HAVE A PREGNANCY, THAT IT IS REALLY NOT CONTENT -NEUTRAL, SO THE QUESTION I HAVE IS, DO WE , AND , AGAIN , I CAN THINK OF SO MANY MEDICAL PROCEDURES. WE HAVE YOUNG WOMEN THAT ARE HAVING BREAST ENHANCEMENTS , YOU KNOW , PLASTIC SURGERY THAT COULD BE VERY HARMFUL TO THEM PSYCHOLOGICALLY, SO THAT IS WHERE I WAS GE TTING BACK TO WHAT DO WE HAVE , ASFAR AS WHAT THE LEGISLATURE WAS THINKING , TO, IN ENACTING THIS STATUTE?

I AM NOT SURE THAT THERE WAS ANY REL EVANT LEGISLATIVE HISTORY ON THIS.

SO ON ITS F ACE , THEY JUST PICKED OUT ABORTI ON, AND WE DON'T HAVE ANY IDEA WHY THEY DID .

NO. I CAN'T SAY THAT THAT IS IN THE RECORD.IT IS NOT. BUT I THINK IT IS C LEAR THAT THEY ARE INTE NDING TO EN SURE THAT WOMEN WHO ARE CONSIDERING AN ABORTION JUST BE FULLY INFORMED OF WHAT IS GOING TO HAEN, AND I DON'T THINK MR. CHIEF JUSTICE

DO YOU, IS THE NATURE AND THE RISKS OF UNGOING OR NOT UNDERGOING OF UNDERGOING OR NOT UNDERGOING , POST PROCEDURE , ARE THOSE MEDICAL OR PS YCH BE LO GICAL RISKS.

THEY ARE MEDICAL RISKS.

HOW CAN THAT BE , BECAUSE C SAYS MEDICAL RISKS .

BECAUSE THIS IS A MEDICAL CONSENT STATUTE.

A DO CTOR IS IRRELEVANT?

PAR DON?

SO HOW DOES "A" AND " C" DIFFER?

"C" IS THE RISK OF THE FETUS AND THE WOMAN , MEDICAL R ISK OF CAR RYING THE F ETUS TO TERM, AND THE "A" IS THE RISK OF UNDERGOING THE PROCEDURE, WHICH I THINK IS, OBVIOUSLY, THE MEDICAL RISK . I JUST THINK IT IS AN UNREASONABLE INTERPRETATION , TO I THAT , AS HAS BEEN ARGUED, THAT THAT , THAT THAT M EANS SO CIAL AND ECONOMIC RISKS.

CHIEF JUSTICE: SO A DOCTOR WOULD , FROM THE NORTH FLORIDA CASE, WE KNOW THAT THERE ARE MORE RISKS IN T AKING , GOING TO TERM THAN IT IS TO HAVE AN ABORTION , IF A DOCTOR SAID, YOU KNOW , IT IS REALLY RISKER IF YOUHAVE THE CHIL D OR NOT , THAT WOULD BE SUFFICIENT INFORMED CONSENT?

NO , I DON'T THINK SO. I THINK THE DOCTOR NEEDS TO EXPLAIN WHAT IS GOING TO HAEN, THE PARTICULAR RISKS OF THE ABORTION PROCEDURE. THEY MAY B E LESS THAN CARRYING TO TERM , BUT THAT DOES NOT, REAL LY, INFORM THEPATIENT OF WHAT IS GOING TO HAEN IN A PARTICULAR RISK TO HER. I MEAN, THE PATIENT FOR EXAMPLE , MAY HAVE HAD FOUR OR FIVE PRE VIOUS ABORTION S, AND THAT, HER MEDICAL CONDITION MAY BE SUCH THAT A FIFTH OR SI XTH ONE WOULD P OSE A SIGNIFICANT RISK O F HARM TO HER , AND D RINK THINGS LIKE THAT HAVE TO BE HELOUS AND THINGS LIKE THAT HAVE TO BE ELUCIDATED.

CHIEF JUSTICE: AND THAT WOULDN'T BE PART OF A DOCTOR'S NORMAL DUTY OF C ARE THAT WOULD BE CO VERED BY INFORMED CONSENT GENERALLY?

IT SHOULD BE , BUT 766.103DOESN'T ENSURE THAT.

CHIEF JUSTICE: I SEE YOUARE IN YOUR REBUTTAL, IF YOU WANT TO SAVE SOME TIME.

THANK YOU.

MAY IT PLEASE THE COURT. MY NAME IS MARSHAL OSOFSKY , AND ALONG WITH BEBE ANDERSON , WE REPRESENT THE DOCTOR AND WOMEN'S CENTER. AND BARRY SI LVER HAS GRACIOUSLY G IVEN ME HIS TIME TODAY .

LET ME ASK YOU A QU ESTION , J USTICE SAID A DECISION TO ABORT IS ONE THAT IT IS IMPERATIVE THAT BE MADE WITH FULL KNOWLEDGE OF ITS CONSEQUENCES, AND IN T W , IT WAS SAID THAT EXAMPLES OF REGULATIONS PERMISSIBLE D URING THE FIRST TRI FEST MESSTER ARE TRIMESTER ARE REQUIRING INFORMED CONSENT AND THE MAINTENANCE OF CERTAIN RECORDS. GIVEN THE STATEMENTS O F BLACKMON AND EHRLICH , HOW IS THERE A WAY O F ENSU RING INFORMED CONSENT IN THESE CIRCUMSTANCES?

BECAUSE THE GENERAL CONSENT THAT IS ALREADY ON THE BOOKS , PROT ECTS THE WOMEN TO DAY, BECAUSE THE INFORMATION GIVEN TO THEWOMEN IS BY , THROUGH MEDICAL JUDGMENT, BA SED UPON THE PARTICULAR CIRCUMSTANCES OF THE WOMAN IN HERETIC LAR PLACE IN LI FE.

IN HER PARTICULAR PLACE IN LIFE .

YOU HAVE TO PROVE IT I S SOMETHING MORE THAN JUST REDUNDANT , RIGHT? IF ALL IT DOES IS OFFER THE SAME PROTECTIONS THAT THE GENERAL MEDICAL CONSENT DOES , SO WHAT? THAT DOESN'T MAKE IT CONSTITUTIONAL.

BUT YOU CAN USE THESTATUTE THAT EX ISTS COMP ARED TO THIS STATUTE , AND YOU CAN S EE THAT THIS STATUTE IS VOID FOR VAGUENESS , BECAUSE WHEN YOU COMPARE THE TWOSTATUTES, CLEARLY THE GENERAL MEDICAL CONSENT STATUTE THAT IS ON THE BOOKS IS NARR OWLY TAILORED TO THE INDIVIDUAL PATIENT AND PROVIDES THE DOCTOR WITH THE PROPER GUIDELINES TO GO BY , TO GIVE THE PROPER INFORMATION TO THE PATI ENT.

OKAY , WELL, THEN , YOU WOULD AG REE THAT THE STATE HAS THE PO WE R TO PA SS AN INFORMED CONSENT STATUTE .

YES, AS LO NG AS THAT INFORMED CONSENT STATUTE

AND IT AFFECTS WOMEN.

AS LON G AS IT AF FECTS ALL PATIENTS EQUALLY, IS WHAT WE ARE , IS THE POINT . IF YOU ARE GOING TO

WHAT , I JUST WONDER HOW, WHERE WE ARE GOING WITH ALLOF THIS , IS WHAT CONCERNS ME , BECAUSE I HAVE A HARD TIME SEEING THE LOGIC OF NOT BEING ABLE T O REQU IRE A N INFORMED CONSENT , IN RESPECT TO THE TERMINATION OF PREGNANCY , AND YET BE ABLETO HAVE INFORMED CONSENT IN RESPECT TO B REAST SUR GERY . NOW , DO YOU THINK THAT THE BREAST SURG ERY INFORMED CONSENT STATUTE IS UNCONSTITUTIONAL, AS AN INVASION OF PRIVACY?

NO , Y OUR HO NOR , BECAUSE I THINK THAT THE BR EAST STATUTE TAKES INTO CONSIDERATION THE PATIENT'S CIRCUMSTANCES AS IT WAS READ TO US. THE STATUTE AS WRITTEN FOR THE , THAT IS IN THE "WOMAN'S RIGHT TO KNOW" ACT, DOESN'T A LLOW A DOCTOR TO TAKE INTO CONSIDERATION, THE

SO, REALLY , WH AT I AM T RYING TO UNDERSTAND, THEN , IS WHET HER WE ARE DE ALING WITH SOMETHING THAT IS REA DILY DO NE AS A MATTER OF LAW, WITH N O RECORD. IF WE ARE DEALING WITH WHAT IS UNDER THE CIRCUMSTANCES , OR WHETHER THERE N EEDS TO BE DEVELOPED , A RECORD , IN ORDER TO MAKE THAT DETERMINATION. IF WE CAN LOOK AT ONE STATUTE ON BRE AST SURGERY AND SAY THAT IT DOESN'T INVADE PRIV ACY , WE LOOK A T ANOTHER ONE , AND ALL WE ARE T ALKING ABOUT, WHAT IS UNDER THE CIRCUMSTANCES , IT SEEMSTO ME WE ARE INTO AN INCONSISTENCY .

WELL , I DON'T BELIEVE IT IS INCONSISTENT , BECAUSE I THINK THAT THE BREAST CANCER STATUTE THAT YOU WERE REFERRING TO S ETS FORTH THE SPECIAL CIRCUMST ANCES THAT A DOCTOR WOULD CONSIDER , M UCH L IKE THE SAME S PECIAL CIRCUMSTANCES GENERIC TERM U SED IN THE GENERIC MEDICAL CONSENT STATUTE. THIS STATUTE DOES NOT HAVE, UND ER THE CIRCUMSTANCES , IT DOESN'T LAY OUT ANY OF THE SPECIFICS.IT DOESN'T DO ANYTHING EXCEPT SET FORTH SOME REASONABLE PATIENT STANDARD THAT NO ONE KNOWS WHAT THAT MEANS , AND

THAT IS A PRETTY COMMON STANDARD, THOUGH , ISN'T IT , I MEAN, F O UND IN THESTATUTES, HASN'T THAT BEEN FOUND CONSTITUTIONAL IN OTHER STATES , REASONABLE PATIENT AND OTHER KIND OF OBJECTIVE IN DICIA IN STATUTES , HAVEN'T THOSE BEEN UPHELD AS CONSTITUTIONAL?

AS FAR AS A REAS ONABLE PATIENT STANDARD GO ES IN OTHER STATES, THE MAJORITY OF THE CA SES , THAT MAJORITY , ALMOST ALL OF THE CASES CITED BY THE AELLANTS , WERE CASES DEVELO PED IN COMMON LAW, WHEN THEY WOULDTALK ABOUT THE REASONABLE PATIENT. THEY WOULD ALWA YS HAVE THE FOLLOW-UP UNDER THE CIRCUMSTANCES OR IN HER CIRCUMSTANCES, OR, BUT THEY WOULD ALWAYS HAVE THAT QUALIFYING LANG UAGE.

WELL , HOW CAN YOU READ IT OTHERWISE, THEN, IN THOSE CIRCUMSTANCES?I MEAN, WHEN YOU TALK ABOUTTHE REASONABLE PATIENT IN A STATUTE, YOU ARE NOT TA LKING ABOUT A REASONABLE PATIENT GOING IN FOR AN AENDECTOMY . YOU ARE TALKING ABOUT A REASONABLE PERSON GOING IN FOR AN ABORTION .

BUT WHAT IS THE REASONABLE PERSON COM ING IN FOR ABORTION? IS IT A R APE VICTIM? A MATURE WOMAN WHO IS SEEKING ABORTION FOR SEVERALREASONS , IS IT I N SAYS? YOU DON'T KNOW WHAT KIND OF PATIENT .

CHIEF JUSTICE: SO YOU ARE SAYING THE STATUTE, UNDER "A", FIRST OF ALL THE STATEHAS CONCEDED THAT THIS IS ONLY MEDICAL RISKS NOT PSYCHOLOGICAL RISKS , WHICHSEEMS TO ME A B IG CONCESSION , AND THE SECOND IS THAT I WOULD THINK THAT , F URTHER , IF THEY CONCEDED , THEN YOU WOULD READ "A" THAT IT WOULD BE MEDICAL RISKS , REASONABLE PATIENT UNDER THE CIRCUMSTANCES , SO A 35-YEAR-OLD WOMAN WOULDN'T GET THE SAME DISCUSSION AS AN 18 YEAR-OLD . NOW , IS THAT NOT , YOU READ IT AS YOU HAVE TO SAY THE SAME THING TO EV ERY PATIENT THAT COMES IN?

AS W RITTEN , YOU WOULD , AND I THINK THAT IS THEPROBLEM WITH THE STATUTE, IS WHAT, THAT GOES TO OUR WHOLEPOINT ABOUT THE VAGU ENESS , THAT A DOCTOR LOOKING AT THIS, WON'T KNOW THAT THE STATE HAS CONCEDED ITS MEDICAL RISK .

CHIEF JUSTICE: ONCE YOU HAVE MA DE THE STATEMENT, NOW YOU ARE JUST TALKING ABOUT PRIVACY.

RIGHT. TWO ISSUES, ONE A VAGUENESS AND ONE A PRIVACY ISSU E.

CHIEF JUSTICE: LE T'S GO BACK TO THE PRIVACY ISSUE , IF WE INTERPRET THE STATUTE AS ONLY BEING MEDICAL RISKS AND ONLY BEING REASONABLE PATIENT UNDER THE CIRCUMSTANCES, WHICH YOU SAY IS SIMILAR TO BREAST CANCER,THEN WHAT IS WR ONG WITH THAT? AN ENHANCEMENT, THEN , OF THE GENERAL MEDICAL CONSENT STATUTE.

AG AIN, IT DOESN'T SAY UNDER THE CIRCUMSTANCES. THAT LANGUAGE BEING MISSING IS A K EY E LEMENT, BECAUSETHE REASONABLE PATIENT MR. CHIEF JUSTICE

WHAT ISIT , BUT HOW DOES THAT , IN OTHER WO RDS , IF , HO W DOES THAT INFRINGE ON THE RIGH T TO PRIVACY? I AM JUST TALKING ABOUT PRIVACY. MEDICAL RISK. NOT PSYCHOLO GICAL , SO CIAL RISKS. AND NOW WE ARE NOT TALKING ABOUT THE PRINTED MATERIALSPART BUT JUST SUBSECTION ONE, THEN , HOW IS THAT A PRIVACY INVASION , WHICH WAS REALLY WHAT JUSTICE BELL WAS ASKING INITIALLY .

RIGHT. WELL , IF IT WAS WRITTENEXACTLY LIKE THE MEDICALCONSENT STATUTE, THEN WEWOULD HAVE HARD TIME AR GUING PRIVACY , BECAUSE IT IS NOT DICTATING WHAT A DOCTOR SAYS. IT IS LEAVING DISCRETION TOTHE DOCTOR, WHICH IS NOT INTERFERING WITH THE DOCTOR/PATIENT RELATIONSHIP .

CHIEF JUSTICE: SO IF WE INTERPRET THE STATUTE THAT WAY , THEN IT WOULD BE CONSTITUTIONAL .

IF YOU INTERPRET THE IT IF YOU INTERPRETED IT THAT WAY

CHIEF JUSTICE: AS BEING MEDICAL RISK AND TAILORED TO THE CIRCUMSTANCES, AS JUSTICE BELL SAID IT WOULD BE COMPARED TO THE MEDICAL CONSENT STATUTE , BUT THESTATUTE IS NOT A MANDATORY CONSENT STATUTE.

IT MAY C URE SOME OF THE PRIVACY ISSUES , BUT YOU WOULD STILL HAVE SOME OF THEOTHER ISSUES, AS THE VAGUENESS ISSUES, BECAUSE A DOCTOR LOOKING AT IT WOULDN'T, ON ITS F ACE MR. CHIEF JUSTICE

AGAIN , THE QUESTION IS WHAT LE EWAY THE COURT HAS TO TAKE SOMETHING THAT COULD BE V AGUE , AND WITH THE CONCESSIONS BITE STATE, READ IT AS TO BE CONCESSIONS BY THE STATE , READ IT AS TO MEDICAL RISK AND READ IT AS TO BEING UNDER THE CIRCUMSTANCES. BECAUSE CERTAINLY YOU WOULD AGREE, IN THE EXAMPLE CI TED BY THE STATE, THAT , IF IT WAS A WOMAN THAT HAD HAD FIVE PRIOR ABORTIONS , THEN THERE WAS A DANGER IN THENEXT ONE , CERTAINLY YOU WOULD AGREE THAT THOSE RISKS S HOULD BE COMMUNICATED TO THE PATIENT .

I CERTAINLY AGREE THOSE RISKS S HOULD BE COMMUNICATED TO THE PATIENT, BUT THE DOCTOR WOULD HAVE TO KNOW THAT PARTICULAR PATIENT'S CIRCUMSTANCES , WHICH IS WHY

I AM SO RRY. I DIDN'T MEAN T O INTERRUPT, BUT THER E IS THAT C ATCH ALL PROVISION , I GUESS AT THEEND OF THE STATUTE , THATSAYS THAT NOTHING IN THIS STATUTE SHALL PROHIBIT THE PHYSICIAN FROM ADVISING THE PATIENT OF ANYTHING ELSE THAT THE PHYSICIAN DE EMS RELEVANT , SO EVEN I F WE INTERPRET IT THAT WAY , THE PHYSICIAN CAN, STILL , SAY, LOOK, UNDER YOUR PARTICULAR CIRCUMSTANCES, THIS IS WHAT I AD VISE , AND THE STATUTE SEEMS, TO ME , VERY EMPHATIC IN SAYING WE ARE NOT TRYING TO KEEP THE PHYS ICIAN FROM INFORMING THE PATIENT OF ANYTHING THE PHYSICIAN DEEMS RELEVANT.

WELL , WHAT THAT PROVISION DOES IS IT ALLOWS THE DOCTOR TO ADD MORE , BUT IT DOESN'T ALLOW THE DOCTOR TO SUBTRACT THE STANDARDIZED LANG UAGE WHICH EX ISTS I N " B" AND " C" , WHICH WOULD BE AN OTHER ISSUEAS TO JUSTICE PARIENTE'S QUESTION THAT IT MAY SOLVEPROBLEMS WITH RESPECT TO SUBSECTION A BUT NOT TO "B" AND "C" , SO NOW YOU ARE TELLING THE PATIENT ALL OF THE STANDARDIZED LANGUAGE AND ARE STRAIGHT JACKETINGTO TELL HIM YOU HAVE GOT TO SAY ALL O F " A , B AND C AND YOU CAN ADD MORE TO IT , BUT IF IT CONFLICTS WITH A , B , AND C , WHAT YOU ARE A D DING , YOU ARE GOIN G TO HAVE A VERY CONFUSED AND STR ESSED OUTPATIENT.

THE DOCTOR CAN SAY THIS IS A NORMAL RISK. HOWEVER , YOU HAVE U N IQUE CIRCUMSTANCES.YOU ARE 35 YE AR S OLD AND HAVE TWO ABORTIONS AND TWO CHILDREN AND IT MAY BE DANGEROUS FOR YOU TO UNDER G LOW AN ABORTION TO UNDERGO AN ABORTION , AND DANGEROUS TO RENDER YOU STERILE , THOSE THIN GS SEEM TO BE WHAT THE CA TCH ALL PROVISION AT THE EN D IS ALL ABOUT.

BUT , A GAIN , IT ONLY ALLOWS YOU TO ADD THINGS. YOU STILL HAVE TO GIVE THE STANDARDIZED

RIGHT.

- - INFORM ATION, AND THE STANDARDIZED INFORMATIONWOULD NOT BE AROPRIATE FORTHAT PARTICULAR PATIENT ANDYOU HAVE TO GI VE IT, ANYWAY, IT IS GOIN G TO BE HARMFUL TO THE PATIENT.

WEREN 'T THERE TWO AFFIDAVIT BY EXPE RTS , PRESENTED BY THE STATE, THAT SAID THAT, AS WRITTEN, THIS IS AROPRIATE AND WHAT A PHY SICIAN SHOULD DO UNDER THE CIRCUMSTANCES?

WE DON'T THINK THE AFFIDAVIT IS EVEN BEING CONSIDERED, BECAUSE ON THEFACE OF THE STATUTE, YOU CAN SEE THAT IT VIOLATES PRIVACY AND IS V OI D FOR VA GUENESS , BECAUSE WHEN YOU COMPARE IT

HOW DOES IT VI OLATE PRIVACY , IF THE INTENT IS TO PROVIDE INFORMED CONSENT? IT IS NOT SAYI NG THAT THE ABORTION CANNOT BE UNDERTAKEN. THE QUESTION IS WHE THER OR NOT THE DECISION IS AN INFORMED ONE. THAT IS WHAT IS HERE , ANDLET ME BACK UP . I THINK YOU CAN ANSWER THAT Q UESTION BY RESPONDING TOTHE STATE'S AR GUMENT THAT THE GENERAL MEDICAL CONSENT PROVISION IS A PROVISION IN ORDER TO PROTECT PHYSIC IANS F ROM SUIT . IE , AS LONG AS THEY DO THESETHINGS, THEN THERE IS LIMITATIONS ON YOUR ABILITY TO SUE THEM. WHEREAS THE BREAST SURG ERY AND THIS PRO CEDURE , IS FOCUSING ON THE PATIENT'SNEED IN MAKING THE PATIENT INFORMED , SO SPEAK TO THAT.

THE GENERAL MEDICAL CONSENT STATUTE, ALTHOUGH IT IS THERE TO PROT ECT THE DOCTOR, ALSO PROVIDES THE GUIDELINES FOR THE PROVIDING OF CONSENT, BY TELLING THE DOCTOR THAT THEY CAN USE THEIR MEDICAL JUDGMENT IN THE PATIENT'S PARTICULAR CIRCUMSTANCES.THE HARM WITH THIS STATUTE IS THAT IT IS INTERFERINGW ITH THAT RELATIONSHIP , BECAUSE PRIVACY , WHICH WAS YOUR CONCERN INITIALLY , I S IMPACTED BY THIS , IN THAT ROWE AND IN RE TW , THEY ALLSAY THAT THE MOST IMPORTANT THING IS NOT TO INTERFERE WITH THAT PATIENT

HOW IS INTERFERING WITH THE RELATIONSHIP ANY DIFFERENTLY, BECAUSE I ASSUME YOU ALY THE SAME STANDARD TO THE BREAST SURGERY, WOULD YOU NOT? DOES THE SAME STANDARD ALYON THE RIGHT OF PRIVACY AS TO THE BREAST SURGERY?

I BELIEVE IT WOULD. WE HAVE N'T EXAMINED THEBREAST STATUTE IN ITS INT IRD ENTIRETY, BUT IN ITSENTIRETY, BUT FROM WHAT IUNDERSTAND AND HAVE HEARD AND READ , IT WOULD SEEM THAT THAT STATUTE IS CLOSER TO THE GENERAL MEDICAL CONSENT STATUTE, IN THAT IT DOES ALLOW A PHYSICIAN TO CONSIDER THE PARTICULAR NEEDS AND SPECIAL POSITION THAT THAT PATIENT IS IN. THIS STATUTE DOES NOT, BECAUSE IT DOES NOT HAVE, UNDER THE CIRCUMSTANCES OR ANYTHING DIRE CTED TO THAT PARTICULAR PATIENT. ALL IT DOES IS PROVIDE A STANDARDIZED CHECKLIST FOR THE THIS DOCTOR TO GO THROUGH UNDER SOME HYPOTHETICAL REASONABLE PATIENT STANDARD, WHEN IS THAT REASONABLE PATIENT WHEN THAT REASONABLE PATIENT , WHO KNOWS WHAT THAT IS.

CHIEF JUSTICE: IS SUBSECTION 2 IMPLICATED IN THIS DISCUSSION? THAT IS THE ISSUE OF THE PRINTED MATERIALS PREPARED AND PROVIDED BY THE DEPARTMENT HAVE TO BE GIVENTO THE PREGNANT WOMAN.

WE DID NOT ADD RESS THAT MATTER IN OUR MOTION FOR SUMMARY JUDGMENT. OUR MAT TERS WERE DIR ECTLY JUST T O SUBSECTION A. THE , AS COUNSEL TOLD YOU , THE PRINTED MATE RIALS WERE NOT COMP LETED . WE DIDN'T F EEL A N EED TO ADDRESS THAT, BECAUSE WE FELT THAT , JUST ON ITS OWN , SUBSECTION A VIOLATED THERIGHT TO PRIVACY AND WAS, ALSO, VOID FOR MR. CHIEF JUSTICE

SO YOU HAVE NO ARGUMENT ON SUBSECTION 2 AT ALL.

WELL , WE HAVEN'T MADE THE ARGUMENT, BECAUSE WE DON'T BELIEVE AT THIS PARTICULAR JUNCTURE WE HAVE HAD TO YET BECAUSE OF THE CONSTITUTIONAL PROBLEMS WITH SUBSECTION A. AS I , WHEN I F IRST STA RTED , I WANTED TO TOUCH ON SOMETHING THAT JUSTICE PARIENTE BROUGHT UP, WHICH WAS THE PROBLEMS WITH SUBSECTIONS A VE RSUS "C " ", BECAUSE THAT GO ES TO ONE OF THE ISSUES THAT WE HAVE WITH OUR MA JOR VAGUENESS ARGUMENT. THE STATUTE IS V AGUE, NOT ONLY BECAUSE OF THE REASONABLE PATIENT STANDARD WHICH WE HAVE ALREADY TALKED ABOUT , BUT BECAUSE THE NONMEDICAL RISKS , WHICH , AGAIN , ONLY ASSUME TO BE NONMEDICAL RISKS IN SUBSECTION A, ARE DIFFERENTTHAN THE MEDICAL RISKS IN SUBSECTION C. THE PLAIN LANGUAGE OF " A" , THE PLAIN LANGUAGE OF "A" IS NOT LIMITED TO MEDICAL RISKS , BUT THEN THE STATUTE PROVIDES NO GUIDANCE AS TO WHAT NONM EDICAL RISKS ARE TO BE DISCLOSED , SUCH AS ECONOMIC, SO CIAL OR EMOTIONAL PROBLEMS. THE STATE'S PO SITION

OBVIOUSLY I DON'T THINK THE LEGISL ATURE INTENDED FOR THE PHYSICIANS TO BE ECONOMISTS , THEY ARE PHY SICIANS, SO WOULDN'T, ESPECIALLY GIVEN THE DOCTOR WOULD INTERPRET A STATUTE IN ORDER TO FIND IT CONSTITUTIONAL NOT UNCONSTITUTIONAL, DOESN'T THAT HAVE TO BE INTERP RETED AS SAYING YOU HAVE TO INFORM THEM OF THE RISKS THAT ARE WITHIN YOUR COMPETENCE TO INFORM THEM ABOUT, NOT THAT YOU HAVE TO BE A COUNSELOR AND AD VISOR AND SPIRITUALADVISOR TO THIS PERSON, BUTYOU ARE A MEDICAL DOCTOR. YOU INFORM THEM OF THE RISKSAS YOU KNO W THEM , UNDER YOUR EXPERTISE.

THAT IS P ART OF THE PROBLEM WITH THE STATUTE, IS THAT IT DO ESN'T SAY THAT. IT SAYS , IT U S ES THE TERM RISKS , AND IT USE S THE TERM MEDICAL RISKS, AND YOU , A LSO , HAVE TO PRESUME THAT THE LEGISLATURE MEANT WHAT IT SAID, WHEN IT DISTINGUISHED THOSE TWO. IT COULD HAVE PUT MEDICAL RISKS BUT CHOSE NOT TO. IT JUST PUT RISKS , AND THIS IS A HIGHLY VO LATILE AREA .

IF THE INTERPRETATION IS MEDICAL RISKS , THEN YOU AGREE THAT IT IS NOT PROBLEMATIC?

I WOULD STILL THINK IT IS PROBLEMATIC, BECAUSE I THINK ON THE FACE OF THE STATUTE , A REASONABLE DOCTOR COULDN'T BE ABLE TO TELL DOES THAT MEAN , WHAT K IND OF RISKSDOES THAT MEAN ? IF THEY HAD MEANT MEDICAL RISKS , THEY COUL D HAVE PUT MEDICAL RISKS AND THEN THE DOCTOR WOULD KNOW.

CHIEF JUSTICE: IT WOULD SEEM THAT THIS WOULD BE , NOW , RIDICULOUS, BECAUSE IF THE ISSUE WERE MEDICAL RISKS, AND THEY HAVE GOT MEDICAL RISKS OF THE WOMAN CARRYING THE FETUS TO TERM, THEN , THE DOCTOR SAYING , WOULD THEDOCTOR SAY FOR EVERY KIND OF PROCEDURE YOU UNDERGONE , THE UNDER GO , THE RISKS ARE FOR BLE EDING , A ONE PER CENT RISK. THAT IS WHAT IT IS.IF YOU CAR RY TO TERM THERE , IS A 10 PERCENT RISK THAT EXIST , AND I F THAT IS, AGAIN, CONSIDERING IT AS THE PHYSICIAN , AND IT IS RESTRICTED TO T HAT , THEN IT IS HARD TO SEE WHERE THE BURDEN IS .

WELL , THE BU RDEN WOULD BE ON IF THE LEGISLATURE HAD WANTED, YOU HAVE TO MAKE THE STATUTE CLEAR. AND ON ITS FACE , SO THAT A PHYSICIAN LOOKING AT THIS DOESN'T HAVE TO C ULL THROUGHCASE LAW .

THAT IS THE PRINCIPLE, BUT IF THIS COURT INTERPRETS IT AS ACCORDING TO THE PRINCIPLE, THAT W E HAVE A D UTY T O UP HOLD A STATUTEWHERE POSSIBLE , W E CAN'T READ TERMS INTO IT , A GAIN , THE STATE, TO DAY , HASCONCEDED THAT IT IS ONLY L IMITED TO MEDICAL RISKS , AND I DON'T KNOW WHAT THEY WILL SAY ABOUT WHE THER IT NEEDS TO BE UNDER THE CIRCUMSTANCES THAT THAT IS PART OF IT. A T THAT POIN T, THEN , REALLY, THE VAGUEN ESS AND PRIVACY ARGUMENTS , YOU KNOW , IT IS SORT OF LIKE IT IS NOT A BIG D EAL SITU ATION, BECAUSE THAT COULDN'T TAKE VERY LONG TO EXPLAIN , AND IT IS PART OF WHAT YOU PROB ABLY DO ANYWAY , AS A DOCTOR .

WELL , I THINK THE POINTTHAT WE ARE MAKING IS THAT THE STATUTE , FOR WHEN A PERSON READS A STATUTE, HAS TO BE CL EA R ENOUGH , ESPECIALLY WHEN YOUR LICENSEIS AT STAKE .

CHIEF JUSTICE: I GU ESS I CAN UNDERSTAND WHEN IT IS F IRST PA SSED AND YOU READ THE WH OLE THING TOGETHER, IT LOOKS LIKE MAYBE SOMETHING ELSE WAS BEHIND IT , BUT SINCE THERE IS NO LEGISLATIVE HISTORY ABOUT WHAT IS BEHIND IT , AS I SAID IF I READ ONE AND TWO TOGETHER, I HAVE THE IMPRESSION THAT THE LEGISLATURE IS TRYING TO DISCOURAGE ABORTIONS, BUT YOU SAID, WELL AC TION WE ARE NOT LOOKING AT TWO TODAY YOU SAI D, WELL , WE ARE NOT LOOKING AT TWO TODAY , SO I JUST LOOK AT SUBSECTION ONEAND LOOK AT THAT AS MEDICAL RISKS , THERE DOESN'T SEEM TOBE MUCH OF A PROBLEM AT ALL.

IF T HAT IS WHAT I T SAYS .

LE T ME AS K YOU , YOU K EEP REFERRING TO THE PHYSICIAN , THE PHYSICIAN, THE PHYSICIAN , AND I DON'T HEAR YOU TALKINGABOUT THE WOMAN'S RIGHT OF PRIVACY, AND THE RIGHT TO BE INFORMED, DULY INFORMED , FULLY INFORMED OF THE PROCESS , SO MAKE YOUR ARGUMENT HOW THIS STATUTE DOES NOT AC HIEVE WHAT HAS BEEN RECOGNIZED BY BLACKMON AND OTHERS, AS THE N EED TO HAVE FULLY INFORMED CONSEN T. HOW DOES THIS IM PAIR THAT?

AN E LEMENT O F FULLY INFORMED CONSENT , IS THE RELATIONSHIP BETWEEN THE PHYSICIAN AND THE PATIENT, AS RECOGNIZED IN R OWE AND IN RE TW, BY THIS COURT , THAT IN THAT , ESPECIALLY IN THAT FIRST TRIM ESTER , THAT THAT RELATIONSHIP, WHICH IS INHERENT IN THE FUNDAMENTAL RIGHT TO PRIVACY FOR THEWOMAN, IS TO BE ABLE TO HAVE A FR ANK DISCUSSION WITH HER DOCTOR , WHO I S NOT STRAIGHT JACKETED AND NOT BEING DICTATED TO WHAT HE CAN SAY OR SHE CAN SAY TO THE PATIENT , SO ON THE PRIVACY ISS UE , THE WOMAN'S

SO YOUR POSITION IS THE PHYSICIANS WOULD BE THE SOLE DETERMINENANT OF WHAT INFORMATION SH OULD BE GIVENTO THE WOMAN, AND THE STATEHAS NO ROLE IN ASSURING THAT THERE IS A MINIMAL STANDARD OF CONSENT , BUT IT IS SIMPLY AT THE DISCRETION OF THE PHYSICIAN.

THE STATE HAS , THR OUGHTHE GENERAL MEDICAL CONSENT STATUTE, PROVIDED GUIDELINES FOR THE DOCTOR TO FOLLOW. THAT IS MEDICAL JUDGMENT WIT HIN THAT PARTICULAR COMMUNITY FOR PEOPLE WHO PERFORM THAT

BUT , AGAIN , THAT WOULDAROPRIATE THE PHYSICIAN F ROM SUIT, BUT AS THE BREAST CANCER OR BREAST SURG ERY AND THIS, I S THERE NOT A REASON TO ARGUE THAT THE STATE MIGHT WANT TO ASSURE THAT THE WOMAN GETS A SUFFICIENT OR THE PATIENT GETS SUFFICIENT NOTICE?

WELL , THE SUFFICIENT NOTICE TO THE PATIENT IS PROTECTED BY THE GENERAL MEDICAL CONSENT STATUTE, BECAUSE IT DOES SAY THAT THE DOCTOR IS TO TAYLOR WHAT HE OR TO TA ILOR WHAT HE OR SHE SAYS TO THE PATIENT , T AILOR THE PARTICULAR CIRCUMSTANCES

AND IF THERE ARE OTHER CIRCUMSTANCES , LIKE TERMINATION OF PREGNANCYTHAT, THERE IS SUFFICIENT NOTICE BEING GIVEN , AND IN YOUR POSITION , THEY CANNOT PASS STATUTE TO ADDRESS THOSE UNIQUE NE EDS?

MY POSITION IS THAT THERE IS AL READY A STATUTE ON THEBOOKS THAT PRO TECT THE PATIENT THROUGH THE GENERAL MEDICAL CONSENT STATUTE, AND THAT IS AL L WE CAN ASK FOR , IS THAT ALL PATIENTS BE TREATED EQUALLY. THANK YOU.

CHIEF JUSTICE: YOUR TIMEIS EXPIRED . THANK YOU.

YOUR HO NOR, JUST ONE OR TWO QU IC K POIN TS. THIS STATUTE AND SOLVES THE REASONABLE ABSOLVES THE REASONABLE PATIENT STANDARD,WHICH IS WELL-ESTABLISHED IN MANY STATES , AND THAT STANDARD, IF YOU READ THE CASE LAW, IS THAT THE