WASHINGTON (AP) – The Supreme Court said yesterday it will consider the constitutionality of banning a type of late-term abortion, setting up a contentious issue for a newly constituted court.

The Bush administration has pressed the high court to reinstate the federal law, passed in 2003 but never put in effect because it was struck down by judges in California, Nebraska and New York.

The outcome will likely rest with the two men that President George W Bush has recently installed on the court. Justices had been split 5-4 in 2000 in striking down a state law, barring what critics call partial birth abortion because it lacked an exception to protect the health of the mother.

But Justice Sandra Day O’Connor, who was the tie-breaking vote, retired late last month and was replaced by Samuel Alito. Abortion had been a major focus in the fight over Alito’s nomination because justices serve for life and he will surely help shape the court on abortion and other issues for the next generation.

Alito, in his rulings on the 3rd US Circuit Court of Appeals in Philadelphia, has been more willing than O’Connor, the first woman justice, to allow restrictions on abortions, which were legalised in the Roe v Wade decision in 1973.

The federal Partial-Birth Abortion Ban Act prohibits a certain type of abortion, generally carried out in the second or third trimester, in which a foetus is partially removed from the womb, and the skull is punctured or crushed.

Justices on a 9-0 vote vote in a New Hampshire case reaffirmed in January that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother’s health.

Bush has called the so-called partial birth abortion an “abhorrent practice,” and his Supreme Court lawyer, Solicitor-General Paul Clement, had urged justices not to delay taking up the administration’s appeal.

The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend that it is the safest method of abortion when the mother’s health is threatened by heart disease, high blood pressure or cancer.