Two federal appeals courts on opposite coasts on Tuesday declared the Partial Birth Abortion Ban Act unconstitutional, making it a virtual certainty that newly confirmed Justice Samuel Alito will have the opportunity to rule on the thorny issue in the near future.

Both the 9th U.S. Circuit Court of Appeals in San Francisco and the 2nd Circuit Court of Appeals in New York said the law was flawed because it failed to provide an exception when the health of a woman was at stake.

The twin rulings came on the same day that the Senate confirmed Alito, and they underscored how quickly Alito's replacement of 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 the late-term abortion procedure that opponents call "partial-birth" abortion because of the lack of the women's health exception.

The law found unconstitutional Tuesday, which was passed in 2003, states that the procedure, which doctors call intact dilation and extraction, is "never necessary to preserve the health of a woman."

The law subjects any physician who "knowingly performs" the procedure to civil and criminal penalties, including up to two years in prison.

Some doctors say intact dilation and extraction poses less risk of bleeding and infection in the woman than other methods of late-term abortion.

Legal analysts and advocates on both sides of the debate said they believe there are now five votes on the Supreme Court to uphold a ban on the procedure: Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Alito.

"This is a different court now," said 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 Tuesday.

The unanimous ruling from the 9th Circuit went further than the one from the 2nd Circuit, striking down the law on the grounds that it placed an "undue burden" on a woman's right to an abortion and was unconstitutionally vague.

The 9th Circuit also upheld a lower-court finding that the law "created a risk of criminal liability for virtually all abortions performed after the first trimester, which the district court found, placed a substantial obstacle in the path of abortion-seekers."

Although the 2nd Circuit also toppled the federal law, the circuit's Chief Judge John Walker made it clear that he took no pleasure in doing so.

Walker said the court was "compelled by a precedent to invalidate a statute that bans a morally repugnant practice, not because it poses a significant health risk, but because its application might deny some unproven number of women a marginal health benefit."

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