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Supreme Court takes case that could diminish Roe v. Wade

The Supreme Court on Monday agreed to take up a dispute over a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy, potentially setting the 6-3 conservative majority court on a collision course with the landmark 1973 decision in Roe v. Wade.

The move was announced in an unsigned order, with the justices indicating the dispute would be limited to the major issue of the constitutionality of pre-viability restrictions on elective abortions. 

The case was brought on appeal by Mississippi Attorney General Lynn Fitch (R) after a federal appeals court sided with challengers to the state’s restriction. 

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The Supreme Court has undergone a dramatic conservative shift since last year when Mississippi first asked the justices to take up its appeal.

Last term, a bare 5-4 majority voted to block a Louisiana abortion limit, with Chief Justice John Roberts casting the deciding vote alongside Justice Ruth Bader GinsburgRuth Bader GinsburgOcasio-Cortez says Breyer should retire from Supreme Court Progressives want to tighten screws beyond Manchin and Sinema Juan Williams: Time for Justice Breyer to go MORE and the court’s three other more liberal justices.

But the late Ginsburg, a liberal stalwart, has since been replaced by Justice Amy Coney BarrettAmy Coney BarrettOvernight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 Five takeaways on the Supreme Court's Obamacare decision Supreme Court unanimously sides with Catholic adoption agency that turned away same-sex couples MORE, cementing a 6-3 conservative court and throwing the future of longstanding abortion protections into question.

At least four justices must agree to hear a case for an appeal to be granted.

Abortion rights advocates expressed concern over Monday’s development.

“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement. “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”

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The Mississippi law is among hundreds of abortion restrictions that have been introduced recently in state legislatures across the country. In 2021 alone, more than 500 abortion restrictions, including nearly 150 abortion bans, were introduced in 46 states, according to the Guttmacher Institute. Of those, just over 60 measures have been enacted.

The anti-abortion group Susan B. Anthony List (SBA List) hailed the Supreme Court’s move on Monday as a chance to give states more latitude.

“This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions,” SBA List president Marjorie Dannenfelser said in a statement.

Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that the state’s restriction placed an unconstitutional burden on a woman’s right to terminate an unwanted pregnancy before viability. 

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” reads the opinion of a three-judge panel. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”

--Updated at 11:52 a.m.