For Supreme Court's new term: rise of a new centrist

One key issue in the case is whether the high court should defer to Congress on what is medically necessary or set the standard itself.

Three district courts and three federal appeals courts have struck down the 2003 statute, ruling that it is unconstitutional because it fails to provide a health exception as required by the Supreme Court.

Despite universal defeat in the lower courts, supporters of the law hope that O'Connor's retirement and Alito's arrival may have tipped the balance of power on the issue.

In 2000, the Supreme Court struck down a Nebraska law nearly identical to the federal law by a 5-4 vote. Justice Kennedy wrote one of the most impassioned dissents of his 18 years on the court. "The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life," he wrote. He stressed in his dissent that he opposed "the decision, the reasoning, and the judgment."

With the possibility of the court divided 4-4 on the issue, Kennedy may wield the decisive vote. If he sticks to the analysis in his dissent in the Nebraska case, court watchers say the law will be upheld. If he adheres to his strongly held belief in stare decisis – affirming precedent even when a justice disagrees with it – the federal law will be struck down.

But Kennedy's dissent in the Nebraska case suggests another possibility. In 1992, Kennedy helped author a major abortion decision, Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade that established a woman's right to choose to have an abortion. Part of Kennedy's contribution to the Casey decision was a guarantee that the states could regulate abortion procedures provided the regulations didn't create a substantial obstacle to obtaining an abortion. In his dissent in the Nebraska partial-birth abortion case, Kennedy complained that the five-justice majority swept aside the guarantee he apparently wrote into the Casey opinion.

Now, six years later, Kennedy could uphold the 2003 federal law under the theory that the same leeway guaranteed to state lawmakers in the 1992 Casey decision also exists for federal lawmakers. In effect, he would be applying stare decisis to his interpretation of Casey – an interpretation that would undercut the Nebraska ruling as being an unfaithful application of the 1992 Casey precedent. One complicating factor to this scenario, however, is Justice Antonin Scalia's insistence that the Casey abortion precedent (and Roe) must be overruled.

That's not the only complication. A federal abortion regulation runs counter to Kennedy's view of states' rights and federalism. Medical care is generally an area left to state regulation, not federal micromanaging. And some analysts question whether Congress has the power under the Commerce Clause to impose a national ban on a medical procedure that many states wish to retain.

The court will hear arguments on the partial-birth abortion issue on Nov. 8.

Kennedy may cast the deciding vote in the other potential megacase of the term. It involves race-based enrollment plans that seek to maintain integrated public schools in Seattle and Louisville.

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