WASHINGTON — The Bush administration is asking the Supreme Court to reinstate a national ban on a type of late-term abortion, a case that could thrust the president's first court picks into an early tie-breaking role on a divisive and emotional issue.
The appeal follows a two-year, cross-country legal fight over the law and highlights the power that Bush's nominees will have. Just a few months ago, there would have been five votes to strike down the law, which bars what critics call partial birth abortion.
The outcome is now uncertain, with moderate Justice Sandra Day O'Connor retiring and her replacement still unnamed.
"This no longer puts the abortion issue in the abstract with the Supreme Court. This is as live a controversy as you can get," Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, said Monday.
Abortion was already expected to be a major subject in the next round of confirmation hearings, just as it was with the hearings of John Roberts to be chief justice. The Senate began debating Roberts' nomination on Monday, with confirmation expected later this week.
President Bush had supported the 2003 law outlawing what he termed an "abhorrent practice." President Clinton twice vetoed similar bills, arguing that they lacked an exception to protect the health of the mother, something the Supreme Court has said is required in abortion laws.
The law Bush signed was challenged even before it took effect and has never been enforced. Challengers won rulings in New York, California and Nebraska that the law was unconstitutional because of the lack of a health exception.
The Supreme Court is already dealing with a similar issue, in a test of New Hampshire's parental notification statute. That case turns on whether the state law is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health in the event of a medical emergency.
The court should review both cases, Solicitor General Paul Clement said in the appeal, filed Friday and released Monday.
"This case involves the constitutionality of a significant act of Congress that has been invalidated and permanently enjoined by the lower courts," wrote Clement, the government's top Supreme Court lawyer.
The federal Partial-Birth Abortion Ban Act prohibits a type of abortion, generally carried out in the second or third trimester, in which a fetus is partially delivered before being killed.
The earliest that justices could hear arguments on the law is next spring. By then, the court should have two new members.
"It will tell us something about the new justices. I don't think it will tell us everything people would like to know about them," said Jonathan Entin, a law professor at Case Western Reserve University.
In its last major abortion ruling, the Supreme Court on a 5-4 vote struck down Nebraska's partial-birth abortion law in 2000. O'Connor, who voted with the majority, said a similar law could pass muster if it were limited to that particular procedure and included an exception to preserve the mother's life and health.
Chief Justice William H. Rehnquist, who died earlier this month, had voted to uphold the Nebraska law. It is likely, but not certain, that Roberts would vote similarly.
In the government's appeal, Clement noted the 2000 decision, Stenberg v. Carhart, but said Congress determined that type of late-term abortion is not needed to preserve a woman's health.
The case comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.
A judge in Lincoln, Neb., ruled the law was unconstitutional, and the 8th U.S. Circuit Court of Appeals in St. Louis agreed in July. Federal judges in New York and San Francisco also declared the law unconstitutional and hearings are planned in October before appeals courts.
The high court could delay taking up the case for months while it settles the New Hampshire appeal.