I listened to all of the argument in the first partial-birth abortion case last night, and most of the second. Let me briefly summarize the points that jumped out at me. I’m going from memory here; if anyone sees any errors in what I write, they are not intentional; please correct any mistakes.

Solicitor General Paul Clement — who is absolutely brilliant, by the way — argued in support of the law. According to his argument, D&E (the procedure in which the doctor dismembers the fetus in the womb and then removes the parts) is by far the most common procedure, and is employed in about 95 percent of mid- and late-term abortions. D&X (partial-birth abortion) is done in only about 5 percent of cases.

The main differences between the two appear to be the dilation regimen and the number of passes that it takes a doctor to remove all of the fetus.

D&E involves less dilation, because the baby can be broken into little pieces before they are removed. The limited dilation is seen as having health benefits for the mother. Greater dilation involves additional risky procedures and possible side effects for the mother. However, D&E involves a greater number of “passes” for the doctor to remove all of the pieces of the dead fetus, which makes it riskier in that sense.

D&X requires far more dilation, but if everything goes right, there should be only one “pass” to remove the fetus.

It appears to be the case that the use of one procedure versus another is a matter of a particular doctor’s personal preference. In other words, most doctors simply prefer the standard D&E (dismemberment in the womb) method, and believe it is always safer. A small minority of doctors prefer D&X, and believe it is always safer.

The Justices and lawyers discussed the situation where a doctor sets out to do one procedure, but ends up doing the other. There are two interesting points about that.

First, it is very common for a D&X (partial-birth abortion) to turn into a standard D&E. There was evidence that one plaintiff doctor who performs the D&X procedure is only successful in doing so 1/3 of the time. He always sets out to do a D&X, but 2/3 of the time, the D&X (partial-birth abortion) procedure turns into a D&E.

Clement argued that, for one thing, this means that any woman seeking an abortion from a doctor who does D&X can always get a D&E. Always. Every doctor who provides D&X can provide D&E, because most of the time that’s what they end up doing anyway.

By contrast, doctors who set out to perform a D&E almost always succeed. One doctor says he is successful 100 percent of the time; another says he is successful 99 percent of the time.

Clement argued that, as to those extremely rare situations in which a doctor sets out to do a D&E, but due to excessive dilation ends up doing a D&X, the mens rea requirement of the statute would prevent punishment of the doctor. In other words, to be punished under the statute, he must intend to do a D&X (which involves a different dilation protocol) from the very inception of the procedure.

As to the tiny, tiny minority of situations in which particular medical conditions might call for a D&X to be safer than a D&E — such as a cervical cancer or preeclampsia situation in which there is a great risk from puncturing the uterine wall — Clement argued that the fetus could be killed by administering an injection to the fetus while still in the womb. The only evidence of a risk from doing that, he argued, is the same risk you have any time you have an injection. In other words, every medical procedure carries risks, but the risk of an injection is vanishingly small.

In the even smaller universe of cases where 1) D&X is clearly safer due to a medical condition; and 2) injection is not feasible, Clement argued that sustaining the law on its face would not preclude an as-applied challenge. Clement argued that there is no evidence that these two conditions ever exist in the same situation.

Clement had a very interesting bottom line, and it’s based on precedent. He admitted that, while most doctors find D&E preferable, there is an argument by a small minority of doctors that D&X provides marginally fewer risks. Because fetal demise can be accomplished through a simple injection, he argued, that risk is very, very marginal — but it may exist.

But, he said, that is permissible under Supreme Court precedent. It used to be the law that any restriction interfering with the doctor-patient relationship, and creating a marginal extra risk to the woman, would be considered illegal. But that was changed in Casey, which said the prior precedent underweighted the state’s interest in life.

Casey upheld a 24-hour waiting period that an association of doctors said would result in increased health risks to a woman. No matter, said the Justices — if there is a risk, it is a small one.

Under that precedent, Clement argued, the small risk involved in causing fetal demise before delivery by administering an injection is only marginal. It is not unconstitutional to impose such a minor risk, he said.

Leading to an interesting question for abortion supporters: most of you no doubt believe that the state should in no way interfere with the doctor-patient relationship. But current precedent allows some interference with that — such as the 24-hour waiting period. If you could upend the Casey precedent that says the state has some right to interfere with a woman’s right to choose, and go back to the pre-Casey line of rulings that says there must be no such interference, would you?

How strict is your devotion to precedent?