LOS ANGELES -- Two federal appeals courts on opposite coasts declared Congress's partial-birth abortion ban unconstitutional yesterday, making it a virtual certainty that newly confirmed Justice Samuel A. Alito will have the opportunity to rule on the thorny issue in the near future.
Both the US Court of Appeals for the Ninth Circuit in San Francisco and the US Court of Appeals for the Second Circuit in New York said that the law was flawed because it failed to provide an exception when the health of a woman was at stake.
The twin rulings were issued on the same day that the Senate, as expected, confirmed Alito, on a 58-42 vote, and underscored how quickly Alito's replacement of retired Justice Sandra Day O'Connor is expected to transform abortion law.
In 2000, O'Connor cast the deciding vote to strike down a Nebraska law barring late-term abortion procedures because of the lack of the women's health exception.
The ban found unconstitutional yesterday, which was passed in 2003, states that partial-birth abortions were ''never necessary to preserve the health of a woman."
The statute also subjects any physician who ''knowingly performs a partial-birth abortion" to civil and criminal penalties, including up to two years in prison.
Legal analysts and advocates on both sides of the abortion debate said they believe there are now five votes on the Supreme Court to uphold a partial-birth abortion ban: Chief Justice John G. Roberts Jr. and associate justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Alito.
''This is a different court now," said an ebullient Jay Sekulow, lead attorney for the conservative American Center for Law and Justice in Washington, who filed friend-of-the-court briefs supporting the law in both cases decided yesterday. ''This is the issue that is in the forefront of the abortion debate now."
Senator Dianne Feinstein, Democrat of California, who argued against adoption of the ban in Congress, said that the newly configured court should be bound by the landmark ruling, which first guaranteed women the constitutional right to an abortion in 1973.
''Roe v. Wade made it clear that a woman's life and health must be protected," Feinstein said. ''Those pushing for a ban on what they call partial birth abortion failed to succinctly define the medical procedure they seek to ban and they have refused to protect the woman's health."
''It is my hope" that Alito, whose confirmation Feinstein opposed, ''follows the path of his predecessor, Justice O'Connor, by supporting" Roe and a ruling interpreting it in 1992, ''rather than putting his personal views above the law," Feinstein said. ''Unfortunately, I fear he may not."
The unanimous ruling from the Ninth Circuit went further than the one from the Second Circuit, striking the law on the grounds that it placed an ''undue burden" on a woman's right to an abortion and that it was unconstitutionally vague.