A wave of new lawsuits by abortion-seeking pregnant women whose health is in jeopardy may be the consequence of yesterday’s Supreme Court ruling upholding a federal law banning “partial-birth abortion.”

The majority opinion in the case appears to invite such cases. “The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health,” Justice Kennedy wrote in the majority opinion, adding that the courthouse is open to a “challenge in a discrete case.”

In effect, the decision deputizes district judges across the country to authorize or deny partial-birth abortions to pregnant women based on health considerations. Justice Kennedy, the court’s swing vote on abortion, hints that the justices would prefer to keep abortion cases off of its docket, at least while the court’s membership remains the same.

The decision also provided the latest issue for presidential candidates, with Mayor Giuliani, Senator McCain, and Governor Romney endorsing the court’s holding, while senators Obama, Clinton, and Edwards criticized the decision.

Abortion rights proponents decried the decision as an erosion of the court’s recognition of a woman’s constitutional right to an abortion and to protect her health. The decision will require groups such as Planned Parenthood, which brought the case, to rethink its litigation strategy.

The decision yesterday was the first time the court upheld a ban on a specific abortion procedure. Although the exact definition of what constitutes a “partial birth” abortion is disputed, the ban applies to abortions in which the doctor begins to deliver the fetus through the vaginal canal, as would occur during birth, before killing it. President Clinton vetoed such a law twice, before it became law with President Bush’s signature, in 2003.

In 2000, the Supreme Court struck down a similar law from the state of Nebraska. Congress responded by passing a federal law with a similar prohibition to test the court’s resolve on abortion. The law’s sponsors indicated they found the procedure objectionable in part because it resembled the killing of newborn infants.

Moreover, Congress found that the prohibition would not impair a woman’s health because other abortion procedures remained available. Abortion rights groups contest that conclusion, arguing that medical evidence shows the procedure is sometimes the safest abortion procedure for women with a range of conditions, including certain types of cancer.

In upholding the law, which as enacted does not include a health exception, the court overturned the findings of several circuit courts, including one that sits in New York.

The head of the Office of Legal Counsel at the Justice Department under President Clinton, Dawn Johnsen, said the “most shocking” part of the decision was the ruling that no health exception is required in the law. “There are many serious health issues involved in pregnancy and this statute has no health exemption which it must under precedent since 1973,” she said.

Yesterday proponents of abortion rights and law professors were scrambling to understand what cases could be brought under Justice Kennedy’s standard.

“You’re going to literally wait until a woman is hemorrhaging and then she’s supposed to file a lawsuit in federal court?” the deputy director for litigation at Planned Parenthood Federation of American, Eve Gartner, asked. “But I think the reality is most women in serious conditions are not going to initiate federal lawsuits.”

Some legal experts wondered whether the ruling would allow doctors to appear in court to request to perform the procedure, without their patients ever having to go before a judge.

“One question is whether doctors stand in for their patient,” a professor at Columbia University School of Law, Gillian Metzger, said. “Or can they bring anticipatory claims based on the patients they’ve had in the past?”

If not, some abortion rights advocates expressed a concern that physicians will be deterred from using their best medical judgment in emergencies.

In laying down this new standard, the federal high court may be trying to avoid the tempo at the court two decades ago, when it reviewed one major abortion rights case after another.

The justices “have extracted the court from the tar pits at least at the Supreme Court level,” a professor of law at Pepperdine University, Douglas Kmiec, said. “They don’t want to be the general court of abortion jurisprudence. They are quite happy to have decisions made by district courts, and use their power of certiorari to say, ‘no thanks.'”

Justices Thomas, Scalia, Alito and Chief Judge Roberts all signed onto Justice Kennedy’s opinion.

Both the chief judge and Justice Alito, the court’s two newest members, seemed to lay low. Neither wrote a concurring opinion, leaving the nation to guess on where they will line up on the question of whether the federal constitution protects a right to an abortion.

Also significant was the decision by both justices not to sign onto a concurring opinion by Justice Thomas. In a brief concurrence reiterating their opposition to the idea that the Constitution includes the right to an abortion, Justice Thomas, joined by Justice Scalia, also raise the question of whether Congress, under the Commerce Clause, has the authority to regulate the procedure.

In a dissent, Justice Ginsburg called the decision “alarming,” adding that it refused to take recent abortion precedent “seriously.”

“It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists,” Justice Ginsburg, the court’s lone woman, wrote, in an opinion joined by Justices Breyer, Souter, and Stevens.

Justice Ginsburg accuses the majority of paternalism towards women. She took issue with the majority’s concern that women may not be aware of what a partial birth abortion procedure involves.

“This way of thinking reflects ancient notions about women’s place in the family and under the Constitution- ideas that have long since been discredited,” she wrote.

Justice Ginsburg warns that the suggestion of a legal challenge in specific cases, as opposed to a challenge to the law in principle, will be difficult in practice. “Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban,” she writes. A woman suffering from medical complications, she writes, “needs access to the medical procedure at once and cannot wait for the judicial process to unfold.” The majority’s allowance only of an “as-applied challenge in a discrete case,” she writes, “jeopardizes women’s health and places doctors in an untenable position.”