The oral argument in the abortion case.

David Stout reports:

Justice Souter challenged [New Hampshire attorney general, Kelly Ayotte's] assertion that a doctor who performed an emergency abortion would be "constitutionally protected" from prosecution or civil liability. "What do you mean when you say it would be constitutionally protected?" asked Justice Souter, who is from New Hampshire....

Ms. Ayotte did not budge, asserting at one point that even in the most dire emergencies, and when a judge might not be available to authorize an abortion in the absence of a parent, the doctor would be protected. When a parent is not available to give permission, the state law at issue empowers a judge to grant emergency approval.

Solicitor General Paul Clement, arguing for the Bush administration on behalf of the New Hampshire law, said critics of the New Hampshire statute had focused on "a one in a thousand" circumstance in which a teen-ager might need an abortion quickly, and that the entire statute should not be undone.

"And the real question for you is, faced with that kind of case, do you invalidate one thousand applications of the statute, noting that 999 of them are constitutional?" Mr. Clement asked rhetorically.

But Jennifer Dalven, a lawyer for Planned Parenthood of Northern New England, which challenged the law, said that even a minor delay can be disastrous. "As the nation's leading medical authorities have explained, delaying appropriate care for even a very short period can be catastrophic and puts the teen at risk of liver damage, kidney damage, stroke and infertility," she said.

Ms. Dalven met with some skepticism when she said that the provision for a judge's order can be a dangerous obstacle. "Once a minor arrives in the emergency room, it is too late for her to go to court," she said.

Justice Antonin Scalia wondered what would happen if the state created "a special office, open 24 hours a day" to field just such emergencies: " 'This is the abortion judge.' It takes 30 seconds to place a phone call."...

The New Hampshire bill's sponsors successfully fought against a health exception on the grounds that it would give doctors too big a loophole to avoid parental involvement in decisions about ending pregnancies. Justice Breyer acknowledged that point in passing, noting that "lots of people think 'health exception' is a way of getting abortion on demand."

Scalia's hypothetical may be interesting, but the state hasn't set things up like that, and the doctor is obviously in a better position to make the call. Even if we were assured there would always be an "abortion judge" by the phone, you'd still have to explain the condition which would presumably take some time. Why should someone have to endure the "risk of liver damage, kidney damage, stroke and infertility" for the time it takes to do that, especially considering that the doctor is the one with the medical understanding of the situation?

And what does Ayotte's assertion about 1000 applications of the statute mean? That every 1000 times it's imposed, one unfortunate woman suffers a serious injury? Why is that acceptable?

UPDATE: Listen to the whole oral argument here or download here.