Judges Appear Hesitant on Virginia 'Partial Birth' Abortion Ban

Both sides in the case agree the law bans the medical procedure "intact dilation and extraction," which along with "standard dilation and extraction" is used to terminate pregnancies after about 12 weeks. Up to 90 percent of abortions occur before then, and physicians commonly vacuum out the embryonic tissue.

In a standard dilation and extraction, which remains legal, the fetus is dismembered within the womb, while in an intact procedure, the fetus is partially delivered and the skull is crushed to make removal easier. Abortion rights supporters and many doctors argue that the latter procedure is sometime needed to preserve a woman's health, while those who oppose abortion -- and Congress, in passing the ban -- said it is not.

What concerned the judges about the Virginia law is something the state acknowledged was possible -- an "accidental" intact dilation and extraction that can sometimes occur when a doctor is performing a standard procedure.

Solicitor General Thro called such a possibility a "subset of a subset that is already rare" and said the state law's requirement of intent on the part of the physician would protect the doctor from prosecution. The remote possibility of an accidental procedure cannot be used to strike down the entire law, he argued.

But Judge Michael said even the most remote chance subjects a physician to criminal liability and the only way to fully protect himself would be to not perform standard dilation and extractions.

That is the argument Crepps and co-counsel Stephanie Toti made, saying such a situation would create an undue burden on a woman seeking an abortion. That is a standard set by the Supreme Court that was untouched by the court's "partial birth" decision, which justices said was reached without overturning any of its precedents.

Niemeyer was the tough questioner of Toti, indicating he agreed with Thro that Virginia's requirement of intent protected physicians, and frequently referencing Justice Anthony M. Kennedy's majority opinion in Gonzalez.

While Toti said her client, William Fitzhugh, does not perform abortions on viable fetuses, Niemeyer noted that Virginia's law covered both nonviable and viable fetuses. Niemeyer said the commonwealth has an interest in what happens to a fetus that "fortuitously" emerged "into this world" from a woman who intended to have an abortion.

"Is there anything wrong with that?" he asked.