By Howard Fischer
Mail | X: @azcapmedia

PHOENIX - Attorneys for Planned Parenthood and its allies are rushing to see if there is a viable legal theory to keep the state from once again enforcing its territorial-era abortion law.

And the clock is running.

The research comes on the heels of the state Supreme Court ruling Tuesday that a 2022 law allowing abortion up to 15 weeks does not supersede the 1864 statute that bans the procedures except to save the life of the mother. That was the only issue before the justices.

But the original case, dating back to 1972, included a series of legal theories by Planned Parenthood about why the old statute is unconstitutional.

It never became necessary to pursue those claims once the U.S. Supreme Court ruled in 1973 that women throughout the country have a constitutional right to terminate a pregnancy. But all that was undermined when the high court reversed course in 2022 and overturned Roe v. Wade, leading to Tuesday's decision in Arizona.

That, however, doesn't the the matter.

The justices here, in ruling Tuesday that the 1864 law trumps the newer statute, recognized that those other issues were never resolved. And they gave Planned Parenthood 14 days "to permit the parties, on remand, to determine whether to pursue remaining issues raised in the (1972) trial court.''

That provides a window for challengers to ask Pima County Superior Court Judge Kellie Johnson to stay enforcement of the territorial-era ban while those never-resolved claims are litigated.

Attorney Andrew Gaona acknowledged that could be an uphill battle.

He said that to get a judge to once again delay allowing the 1864 law to be enforced would require showing "some likelihood of success on the merits.'' That, Gaona said, could be difficult.

"Any of these claims would be novel constitutional theories,'' he said, saying it would be "asking a trial court judge to really go out on a limb on to enter a preliminary injunction or some kind of extended stay.''

Still, there are theories to be pursued.

One even the justices in this Tuesday's ruling acknowledged as unresolved is the claim that the 1864 statute violates the due process rights of physicians.

That was an argument advanced even in this latest round of litigation by Pima County Attorney Laura Conover. She argued that's because "it does not provide them clarity on how they should conform their conduct to the law in life- and health-threatening situations.''

Justice John Lopez, who wrote Tuesday's ruling, said he and his colleagues did not address that question because it was beyond the specific issue the justices were being asked to decide: whether the 2022 law overrides the 1864 statute.

More to the point, Lopez said the issue was never fully developed and was never ruled on by Johnson or the appellate court.

But that isn't the only outstanding legal question. When the challenge to the 1864 law was first filed in 1972 - before Roe v. Wade - the attorneys for Planned Parenthood advanced several other theories.

One relates to the Arizona Constitution and its specific right to privacy. It says that "no person shall be disturbed in his private affairs ... without authority of law.''

That same argument about that privacy right has been advanced more recently by current Attorney General Kris Mayes. But in its 1973 decision, the state court of appeals wasn't buying it.

The appellate judges who heard the case at that time acknowledged that the U.S. Supreme Court had agreed there was an inherent right of privacy. That came in a case known as Griswold where the justices in 1965 had voided a Connecticut law that had criminalized the use of birth control.

But the Arizona Court of Appeals rejected the comparison.

"Although there is a private realm of family life in which the court may not enter, one cannot seriously argue that parents are thereby free to abuse and neglect their child free of state control,'' the court concluded. And the judges said that the Legislature determined that a fetus is "life.''

"The difference between this case and Griswold is clearly apparent, for here there is an embryo or fetus protecting itself,'' the judge concluded. "There, the only lives were those of two competent adults.''

And the court called the comparison to overturning a ban on contraceptives invalid.

"Exercise of the right to abortion on request is not essential to an effective exercise of the right not to bear a child, if a child for whatever reason is not wanted,'' the judges said.

Still, that claim could now be resurrected.

There are other arguments in that earlier case that the Supreme Court, in Tuesday's ruling, never reached. arguments  that could provide a renewed basis to challenge the 1864 law.

One is that the law banning abortion constitutes the establishment of a religion because the ban is based on biblical teachings. The appellate judges in 1973 weren't buying that, saying that just because a law may have some basis in a religious teaching, like "thou shalt not steal'' does not make it improper.

And there's even another theory that revolves around discrimination against the poor. That is based on the argument that women with sufficient means are free to travel to other states where abortion is legal, an ability denied to those without such resources.

Outstanding legal issues aside, there's another question: Exactly how long do Planned Parenthood and the other parties in the case seeking to void the 1864 law have to seek judicial intervention before prosecutors are free to start enforcing it.

On paper, the Supreme Court delayed their ruling for 14 calendar days to allow the parties to raise those other issues. That would take us to April 22.

But there's also the fact that the Arizona Medical Association and Dr. Paul Isaacson, who performs abortions, filed their own lawsuit in 2022 against the state arguing that the new law takes precedence over the 1864 statute.

Mark Brnovich, who was the attorney general at the time, sought to put that case on ice. So he agreed that even if the state won its case against Planned Parenthood he would not begin enforcing the territorial-era law for at least 45 days after that ruling became effective.

The deal benefited Brnovich because it meant his attorneys would not have to simultaneously defend two separate lawsuit on the same issue. And, potentially more significant, it precluded the possibility of two conflicting rulings on the issue.

Mayes spokesman Richie Taylor said she interprets that to mean no charges can be brought for at least 60 days as the Supreme Court delayed its order for 14 days -- and the 45-day clock starts running only once the order becomes effective.

That is getting a fight from Jake Warner. He is the senior attorney for Alliance Defending Freedom which stepped in after Mayes took office in 2023 decided the state should no longer defend the 1864 law.

Warner contends that deal by Brnovich is not binding on the state's 15 county attorneys since they are not a party to that other lawsuit.

Taylor said that ignores a key point. He said it was not Brnovich who is a defendant in that case but the state of Arizona.

"The stipulation (not to enforce) is on behalf of the state and remains on behalf of the state,'' Taylor said.

And there's something else.

He pointed out that all criminal charges, regardless of whoever files them, are brought on behalf of the state of Arizona. They are not filed as a specific county against a defendant.

"We're confident the 60-day period applies to everyone,'' he said. "And anyone who tries to bring a case before that certainly will be met with a legal challenge from us.''

We’d like to invite our readers to submit their civil comments on this issue. Email AZOpinions@iniusa.org.